Michael D. Moberly April 8, 2009
The question underlying this post is directed to the literally thousands of SME (small, medium enterprises), SMM (small, medium multinational) decision makers and extraordinarily gifted and independent entrepreneurs and businesses globally. The question is this; why is it that when a company realizes they have developed a truly innovative product and/or service their thoughts tend to rapidly gravitate to (a.) I must contact intellectual property counsel to get the innovation patented, rather than, (b.) I must review my past, current, and future practices to ensure control, use, ownership, and the projected value of that innovation has been – can be effectively safeguarded and sustained for an indeterminate period of time until proper assessments can be made regarding (1.) its patentability, (2.) the costs to market and commercialize the innovation, and (3.) the costs to defend the patent and aggressively pursue infringers
According to an U.S. Patent and Trademark Office (USPTO) report: 97% of patent holders own patents that will never make a profit, and only about 3% of all patents ever make more money than the patent cost in the first place. Assuming the USPTO report still reasonably reflects the current state of patenting outcomes, does the above 97% figure reflect, (a.) the innovators poorly conceived and under-funded innovation commercialization initiative, or (b.) a time-honored, but narrow view of innovation commercialization priorities, e.g., patent first, then try to safeguard the sensitive/proprietary aspects of the Innovation later, (c.) wishful, but naïve (I’m going to win the lottery) thinking, (d.) un-familiarity and under-appreciation for the globally predatorial, winner-take-all practices of infringers, trollers, misappropriators, and other adversaries, or, (e.) the extraordinary costs associated with monitoring patents, pursuing infringers, and the ‘deep pockets’ necessary for any IP litigation.
Yes, patent filings-issuances provide legal standing, and without legal standing, an innovator’s options are surely limited, if non-existent, with of course the possible exception of trade secrecy. But, the number of Coca-Cola’s are few in number.
The point to this exercise is quite straightforward and it has virtually nothing to with the time honored question ‘which came first, the chicken (profit) or the egg (patent)’? Rather, it has to do with the reality of the extraordinarily inter-twined, aggressive, predatorial, and winner-take-all global business environment in which respect for ‘intellectual property’ is dismissed, circumvented, and/or outpaced by a growing global cadre of independent legacy free players and nations who’s GDP is supplemented by an ever thriving infringement, counterfeiting, and product piracy operations supported by consistent demand from the western (developed) nations with indifferent consumers.