Patenting Your Invention: When It’s Worth the Cost Despite Not Being Able to Sue

Deciding whether to pursue a patent when you can't afford to sue for infringement involves careful consideration of several factors. While the ability to enforce your patent through legal action is crucial, there are still significant advantages that a patent can provide, even without the means to litigate.

Exclusive Rights and Deterrence

One of the primary reasons to obtain a patent is to gain the exclusive right to make, use, sell, and distribute your invention. Even if you cannot afford to sue infringers, this exclusivity can be a powerful deterrent. Potential competitors or infringers may hesitate to enter the market, knowing that you have patent protection in place.

Licensing Opportunities

A patent also opens doors to licensing opportunities. You can license your patent to other companies, either for a one-time fee or as a royalty arrangement. This provides a steady stream of income without the need for litigation. Licensing can be a more lucrative and less risky way to monetize your invention than direct sales or enforcement.

Market Advantage and Credibility

Having a patent can significantly enhance your credibility and market position. Investors and partners may be more inclined to back you or join forces if they see that you have protected intellectual property. This increased visibility and trust can lead to greater market access and expanded opportunities.

Potential for Future Enforcement

Even if you cannot afford to sue for infringement now, your patent may grant you the capability to enforce your rights in the future. If your invention proves to be highly valuable and you manage to secure funding or legal support, your patent can serve as a powerful tool to protect your interests and claim the benefits of your innovation.

Cost Considerations and Alternatives

Patenting an invention is an expensive process, involving filing fees, attorney fees, and ongoing maintenance costs. You must carefully evaluate whether these costs outweigh the potential benefits. If the costs are too high, you may want to consider alternative forms of protection such as trade secrets. Trade secrets do not require as much upfront investment and can still provide a significant competitive edge.

Real-World Examples

The decision to patent an invention versus not patenting it can vary widely depending on the specific circumstances of your business and product. For instance, I held three patents but decided to abandon them mainly due to the high cost of pursuing infringers. The costs of enforcement often outweighed the potential benefits, even if we won.

In a different case, I chose not to patent a product because it was crucial to keep the manufacturing process a secret. This strategy allowed the business to run for 25 years with minimal competition. Despite competitors trying to copy the product, their offerings were inferior, and the competition only served to harm their business rather than ours. Had we patented the product, our trade secrets might have been disclosed, potentially leading to a weaker market position.

With the first three patents, many competitors began producing similar products, effectively eroding our market advantage.

In conclusion, while a patent can provide a myriad of benefits, the decision to pursue one should be based on a thorough evaluation of the potential costs and benefits. Even without the ability to sue for infringement, a patent can serve as a powerful tool to protect your intellectual property and give you a competitive edge in the market.