Don't Patent Yourself Out of a Product

Wealth of Ideas Newsletter, July 2004

It happens more often than you would think. An inventor calls our office in the belief that his or her patent is infringed and provides information on the patent, the inventor’s own product, and the infringing product. Then we have to break the news that not only is the competitor not infringing the patent, but the inventor’s own product isn’t even covered by the patent!

The inventor then has a worthless (or nearly worthless) patent and a product with no patent protection – and, thus, no way to protect his or her market share from competitors.

How does this happen? Usually, the story goes like this: the inventor files the patent application before beginning production of the newly invented product. When the invention goes into production, the inventor implements various improvements and modifications, which of course causes it to differ from what is claimed in the patent application. So when the patent issues, it does not cover the “patented” product.

This situation can be avoided, however, by approaching the patenting process carefully. Consider potential variations, modifications, and improvements and include them in the patent application. Seek patent claims which would cover these alternate embodiments of the invention. Remember that patenting is an ongoing process and that filing a continuation or a continuation-in-part, which reflect subsequent improvements on the product, is part of this process. And while we’ve said it before, it bears repeating that “do-it-yourself” patents often lose the inventor more money than they save; an experienced patent attorney can often spot and correct those claims that are unnecessarily narrow.

Although you do not need to patent your product in order to sell it, if your patent does not cover your own product, chances are it won’t cover your competitor’s product either. So proceed with caution, seek a competent patent attorney, and do all that you can to assure that your patent covers the product you ultimately produce.