What can you do when a big business copies your business’ product? My Business asks a patent attorney to find out.
For SME owners, they may not have the time or the money to spend chasing a big business that copied their idea.
My Business reader Chris recently commented on the article, Are patents worth the investment?, asking what an SME owner, who may not have the deepest of pockets, should do if a big company overseas copies their idea.
We sought out Tim Staley, principal and patent attorney of Griffith Hack, a law firm that specialises in intellectual property (IP), trademark and patent law.
Q: When is it worth patenting a product?
A: It's not a question of when, it's a question of whether it's worthwhile the business is patenting at all.
You have to patent before you commercialise or publish your invention. If you don't, you've already donated it to the public and you've lost your IP protection once it's published. It's not a question of when, it's a question of, “Is it worth my while, because of my business strategy, spending the money on a patent?”
Q: Surely a patent is only valuable to the extent you have pockets deep enough to enforce it. If you are a start-up with no money and a big company overseas copies your idea, what do you advise doing?
A: You certainly wouldn't sue them because you wouldn't have the money to do it. But it's sort of the wrong question. It's a real common one. What's implied in that question is, it's not worthwhile [for me] patenting because, “I wouldn't be able to take on a big company.”
But then you could take that to the limit and say, “Well it's not worthwhile [for] me going into business, because I wouldn't be able to take on a big company.”
The first part of your [question], it implies what the question is: “Surely a patent is only valuable to the extent you have pockets deep enough to enforce it.” No, that's not the case. There [are] lots of value to a patent, even if you don't have deep pockets, and there's quite a complex answer there because there [are] lots of reasons for patenting.
You don't sue them; that's a bit flippant. But if you don't patent, what you're doing is you're giving up all your options. You've donated your IP to the public, so you have no option whatsoever.
Q: So, what can a business do if they notice a business has copied their patented idea?
A: Protecting your IP gives you the option to take action at some time in the future, for example. There's a six-year statute of limitations in most jurisdictions. It can vary in term, but in Australia it's six years.
So, if somebody's infringing for six years, you might have money in six years to take them on, and you can claim damages for all those six years, so you could actually sue them later on when you have the funds.
Q: Should an SME with a copied idea try to talk to the big business that copied their idea?
A: If you want to go up against a big player, this gives you a lever to start a conversation. For example, if [you've] invented something that's fantastic for a smartphone, and Apple takes it, and they could take it unknowingly, and they might not know that you've even got a patent.
If they take it, it gives you an option to start a conversation with Apple and say, “Look, hey Apple, we're a small business, but we've got some great ideas, we've got some IP protection, and here's this patent that we've got. Can we start a conversation with you?”
And the guy sitting at Apple, it's sort of misleading to think of them as people that are out there looking for inventions that they can copy and then ignoring the consequences of it.
It also gives you an option to start a conversation with a big guy's competitor of the people that have copied you. That big guy's competitor might find that IP very valuable if they want to take on the person [who's] copied you.
Often, particularly when there [are] lots of big litigation that's going on, Apple/Samsung comes to mind perhaps, people are out there looking for patents they can buy to give them some more ammunition in their patent portfolio.
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