Top 10 Patent Fallacies

#1: I can sell an idea

It’s nearly impossible to sell an “idea”.

Typically, you can only sell the protection you’ve secured for your idea. That’s why most buyers wait for you to obtain a granted patent in an examining country before considering buying your patent / idea – this typically takes 4-5 years.

Our suggestions:

  • If you can, make and supply the product. Then, evolve the supply agreement into a licence, and ultimately sale of the patent.
  • If you are dead-set at trying to sell your idea, don’t spend too much money; rather get a Patent Pending Number or a NDA;

#2: If I change 25% of a patented product, I’ll fall outside the patent

Each patent has a set of claims. If your product includes all the features in one of the patent claims, you’ll infringe the patent, irrespective how many other changes you make.

Read the patent claims and ensure that your product excludes at least one feature from each of the independent patent claims. Any other changes you make are not relevant to the issue of patent infringement.

#3: If I can prove that I invented the idea, I enjoy inherent rights in the idea

Merely inventing an idea gives you no rights. And, if you start selling your idea before registering a patent or design, you’ll crystallise your absence of rights.

File a patent for your new feature before making your first sale/ public disclosure, or file a design registration within 6 months. If not, anyone may freely copy your idea … as with Ubuntu Baba.

#4: Patenting my idea means that I won’t infringe someone else’s patent

The fact that you’ve patented your idea doesn’t mean that manufacture and sale of your patented product will not infringing someone else’s patent. Nothing that do can reduce patent rights that others have already secured.

Whether sale of your patented product infringes a prior patent merely depends on whether your product includes all the features in one of the claims of the prior patent (see fallacy #2).

#5: Since I’ve never seen my idea in the market, it’s “new”

Less than 3% of patented products find their way into the market, and only a fraction of products that’ve found their way into the market remain “in the market”. To determine whether your idea is “new”, you must conduct an international online patent search – disclosure of your idea in a prior patent application affects patentability of your idea.

#6: A provisional patent doesn’t protect my idea from copycats

Partly true: you can’t sue a copycat in Court for infringement of a provisional patent application. But, a provisional patent application reserves your right to patent your idea worldwide for 12 months. This deterrence is in many respects better than the protection provided by a granted complete patent. Even if you filed a South African complete patent on day 1, it would take you at least 33 months before you face-off a copycat in Court.

#7: I can patent a new use

No. A new use of an existing thing cannot be patented. You can only patent a new and inventive feature that you’ve added to enable the existing thing to be applied to the new use.

#8: To patent my idea is expensive

You can start the patent process for only $199 by getting a Patent Pending Number. Alternatively, start with a patent search for R4,950 plus vat. Design registration is an inexpensive way to protect the look of your product.

Patenting can be affordable or very expensive; it’s your choice.

#9: I’ll rely on copyright or a confidentiality undertaking

Copyright doesn’t protect inventions. It also won’t protect a product you make and put on sale. And, after your first sale, you may as well tear up any confidentiality undertakings others have signed, as they’re no longer enforceable. Instead, focus on patents and designs.

#10: If a prior patent hasn’t been extended to South Africa, I can patent it

If someone else has previously patented a product; even if that prior patent has expired, was never granted, or was not extended to South Africa; the product is no longer “new”, and no-one (including you) may now patent the product.

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