Peer-to-Peer: Readers' best advice about patent protection

Written by ProfitGuide Staff

So you’ve developed a promising new product. Congratulations! Now you have to worry about a copycat cashing in on all your hard work. One obvious way to guard against this is to file for patent protection. But is it worth the cost and effort of doing so?

PROFIT-Xtra readers suggested how you can use the patent process most effectively—or take an entirely different approach to fending off copycats—in response to this question from the president of a Laval, Que.-based manufacturing firm:

“I produce a number of different consumer products at my factory, and I believe a new product my R&D team is working on could be a major seller. But I’m worried that because the product is relatively simple, it can be easily reproduced by one of my competitors. Should I file a patent application to protect it from copycats? Is a patent really worth the expense?”

Submit a question.

Best reader responses

Jeff Wilson, Verso Furniture Inc.:

Patents are only as good as your ability to defend them. And that’s a very costly and time-consuming process at the best of times, and a nearly impossible one if you’re facing offshore competitors.

I know of three better ways to ensure you benefit from your innovation: First, be fast. If you can get broad market penetration and establish a brand before the competitors have a chance to jump in, at least some of your customers will remain loyal when the knock-offs arrive. Second, be cheap. Make it easier for people to buy from you than to imitate you. This means going directly to the lowest-cost supply model that any imitator might adopt, preventing them from undercutting you. Third, accept that your innovation will not retain exclusive superiority forever and continue to innovate, staying a few steps ahead of the imitators.

Marianne McBean, strategic planner:

I wouldn’t dream of dissing a patent or of missing an opportunity to obtain a trademark. But a patent is only really worth the time and expense if you’re willing to invest the time and money to fight challenges—every challenge—in court. And good lawyers don’t come cheap

Regardless of what you end up doing on that front, the best recourse for copycats is to do what brands have been doing since the dawn of brands: outsmart them.

Be the first to cement a distinctive and sustainable positioning, and be the only one to develop and maintain the most meaningful and relevant emotional connection with the desired audience. Do this with passion, and you’ll find yourself with the lion’s share of the market.

Choose not to look at your copycats as a menace, but as a valuable source of power from which to draw strength. With cheaper prices, perhaps alternate distribution channels and slightly different esthetics, they will bring more consumers in to the product category and grow its overall size. More consumers will mean more attention, and therefore more perceived need for your product. If you stay one step ahead of the competition, you might just find that you look just that much brighter in comparison. (And everybody compares!)

Of course, this is a general answer to a question that didn’t supply many details. But in general, if you stay sharp, innovate as necessary, always listen to your consumer and create a formidable emotional connection and a positive brand experience, you will establish yourself as the enviable one. Your product will become the one that people will save their money for or spare no expense to buy.

In a word: brand (and fear not the copycats).

Stewart Raynor, Northumberland Group Ltd. (Norpak Handling Ltd./Norpak BC Ltd.):

There are a number of things you should consider. First and foremost is to consult a reputable patent attorney. It would be well worth your time to talk with one, just to understand the whole process

In a nutshell, patents recognize designs or ideas that are either totally new or that are new and useful improvements of the art. When a patent is granted, the design becomes public knowledge. A patent provides protection to the inventor, but only in accordance with the rules of the game. Its purpose is not to prevent future improvements or stop technology at that point.

Typically, patents are granted based on the claims made by the inventor. The claims must contain sufficient detail to adequately describe the invention, but they’re usually written so as not to allow a competitor to easily circumvent. If the new product or design is a real market beater, it is natural that other manufacturers will also want to get in on the action. They will review your patent. If they can obtain the same end result by bettering any one of the claims, then it is likely they are not infringing your design. If your claims are hard to beat, then they may approach you for a licence to allow them to manufacture the product under a royalty plan.

A possible method available to both protect your idea and delay publication of your design and accompanying claims may be working within the “patent pending” process. In the pending stage—the one before the actual patent is granted—there is still time to make changes. No details of your invention are released into the public domain during this phase, and there is still some measure of protection available to the originator. There is a time limit on the pending procedure, but any changes or improvements you make during this period will have the effect of resetting the clock to zero. Again, the services of a good patent attorney can help understand the pros and cons of this approach.

Yes, the costs of patents are high. And obviously, you must consider them versus the increase in profits that could result from your introduction of the new or improved product. Just as important, however, is consideration of the cost to defend your patent against others that might knowingly or unknowingly infringe on the design. An unscrupulous competitor could conceivably put an exact copy of your design into the market and gamble that his pockets are deeper than yours in any fight to defend your rights. If you do not defend your patent, then what is the point in having it?

For his answer, Stewart Raynor will receive a copy of Money Magnet: How to Attract Investors to Your Business, by J.B. Loewen.

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Watch for another Peer-to-Peer Poll in the next PROFIT-Xtra.

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