If you create a product that sells, others are going to copy you.
If you’ve created a product that is selling, congratulations are in order! That’s not easy to do. Now, because of your success, others want to copy, knockoff, and infringe. They want to take advantage of your hard work. This is the reality for inventors of popular products.
Inventors think, all I need is a patent! A patent will solve all of my problems. But that isn’t accurate. A patent gives you the right to sue for patent infringement — an expensive and time-consuming process in which there are no guarantees and the odds do not favor the party with fewer resources. The inventors who are currently protesting the appointment of Congressman Darrell Issa to lead a House Judiciary subcommittee with intellectual property oversight aren’t wrong to think the system isn’t treating them fairly.
But they’re overly focused on the promise of patents — the American dream of being able to own an invention and protect it. Pursuing that dream has become very costly. So costly, in fact, that most inventors can’t afford it. It’s no surprise that litigation funding for patent cases is likely to continue to increase.
However, even if the laws in Congress do change to make it easier for inventors to defend their intellectual property rights, intellectual property protection won’t be enough to stop the copycats, because patents are full of gray areas. I discovered that firsthand when I sued one of the world’s largest toy companies for patent infringement in 2003. After three long years, “right” and “wrong” didn’t factor into our settlement. We were engaged in a war of words.
Had this company infringed on my patent claims or merely worked around them? Who was to say? It was fair game for this company to try to work around the claims in my patents, it dawned on me, because those claims were always going to be interpreted differently by different people at different times.
There was a word for it, actually. Competition.
If you took emotion out of it, deciding to try to work around me was just business.
Of course, no inventor feels that way when it happens to them. When someone uses your invention without paying you royalties, it is devastating and incomprehensible. You feel violated. Don’t they understand how hard you worked? Don’t they know that theft is just plain wrong?
It’s a slippery slope. You can invent and develop something, but still not own it depending on how the language and drawings in your patent are interpreted. If you sue, you could end up winning… but you could also end up losing.
This is the reality, and it’s very upsetting for inventors.
There is a simple solution. Inventors need to focus on protecting their creativity from a business standpoint.
This isn’t easy, because the odds are stacked against the little guy. But it is possible. When you are small, you can be quick, and speed is a great superpower.
If you want to get paid for your creativity, the mindset you need is, “How am I going to outmaneuver the competition every step of the way?”
That includes filing transaction-ready intellectual property and planning ahead for copycats. If your product sells well, there is going to be competition. Congratulations, you just got ripped off!
Many people find this discouraging. But from a business perspective, this is actually good news. You should be celebrating. Most ideas fail because they’re not marketable, remember?
Instead of complaining about the patent system, which is a waste of time and energy, or threatening to sue, inventors should consider the following business strategies to fend off the competition instead.
Business Strategies For Inventors
How to protect your intellectual property from a business perspective.
1. Refuse to let your emotions get the best of you. Don’t threaten to sue anyone. Don’t give anyone a reason to file an inter-partes review (IPR) against your patent with the Patent Trial and Appeal Board at the USPTO.
2. Avoid licensing agreements that tie the grant of license to intellectual property. It’s much better protection to license a product, not a specific patent. Attorneys want to tie the grant of license to intellectual property, but this is negotiable. Basically, you don’t want to give your licensee the option of canceling your licensing agreement in the event that your intellectual property is challenged.
3. Lower your manufacturing costs. Are you manufacturing your product in the most efficient and cost-effective way? This allows you to compete on price. If possible, try to use a material or a manufacturing process that’s not easily copied.
4. License to a market leader. In today’s world, selling first and selling fast have great value. Make sure your licensee has great distribution.
5. Consider sublicensing. Are there territories that your licensee does not sell in? If so, consider seeking out sublicensing agreements with other companies that do. Try to cover all potential distribution points.
6. Build strong relationships with all of the major retailers. Introduce yourself early and follow up often so they know your product is the first and the original. Be reasonable. This will help you stop major retailers from carrying copycat products.
7. File provisional patent applications that include workarounds and variations to help you establish perceived ownership. Beat others to the punch by trying to “steal your invention from yourself.” Include your discoveries in your patent applications. They will help dissuade others from attempting to work around you.
8. Create market demand. When you bring market demand to the table, licensees are less likely to care about intellectual property. Create market demand by showing your invention to customers of the potential licensees.
9. Continue to innovate to stay ahead of the competition. Look to the future and plans correspondingly so that you stay in the lead.
10. Provide great customer service. Love your customers and treat them well. They will come to your defense when you need it. Like Chris Meade, the Forbes 30 Under 30 cofounder of the game Crossnet, said: “They can steal your trademark, but they cannot steal your brand.” Your brand is how you make people feel.
11. Obtain trademarks, copyrights, and design patents. These are simple tools to help you put a stop to online sellers that don’t require you to go to court.
12. Document your journey using social media. You are the first and the original, which is newsworthy. Use social media to let everyone know that you are the creator of this wonderful new product. You are better off fighting in the court of public opinion.
13. License a well-known brand. Brand licensing is great protection for many reasons. It gives your products a very unique point of difference in the marketplace. You also end up leveraging the power of the brand’s legal team.
If you want to become financially successful as a creative person, you need to look at intellectual property protection from a business standpoint.