Five Questions to Ask When Deciding Whether to Pursue Patent Protection

1. Will you have the ability to detect an infringement and enforce your patent rights?  If not, trade secret protection might be considered as an alternative strategy.

2. Are there easily available alternative products or technologies that can perform the same function?  Is your invention easy to design around?  The fewer alternatives, the more valuable a patent will be to protect your market share.

3. How likely is it that it will be copied if not protected?  The more likely it is that it will be used by others, the greater the value of patent protection.

4. What is the longevity of the technology’s useful life.  Patents can take 3-5 years to obtain and are only good for 20 years from filing (14 years from issuance for design patents).  If the technology is short lived, a patent probably won’t be beneficial.  Conversely, a technology whose useful life is more than 20 years may be better protected as a trade secret.  However, some inventions (i.e. mechanical devices) cannot be protected by trade secret, so this is not always a viable alternative.

5. Is a patent likely to be allowed on the desired claim scope? A patentability search can help with this evaluation.

Working with experienced patent counsel can help you navigate these issues and decide whether a patent is right for you.

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