Tuesday, September 11, 2007

Patents for testing

Through several conversations with patent attorneys, I’ve learned something about patenting test methods.

Patents are not cheap. If you work for a large corporation that regularly submits patents, this is not a noticeable issue. But for everyone else, there has to be a very good justification to apply for a patent.

A company will apply for a patent for several reasons. The patent can provide a barrier to a competitor trying to enter a new market. It can protect the company from competitors who may try to use the research that company has done without paying a license fee. Some companies may not actively use the patents, but they can make money off the patents by licensing them. Patents can be a source of pride – listing all the patents a company has applied for is equivalent (in certain industries) to beating your chest.

But there is a catch: you have to be able to prove that the patent is being violated. For example, suppose you have an innovative new manufacturing process. This process is an intermediate step that deposits certain chemicals on the product, and later that layer is removed. This process saves money and improves the product, but technically there is no real way to prove that you do it. Because of that, your competitors could use the same process (that they read about in your patent application) and claim that they do not do that. Short of going into their manufacturing facility, you can't prove it. So, your company might be better off just classifying it as a trade secret and not patent it.

A similar conundrum can apply with test methods. You have a new way to test your product. It's clever, it saves money, it's faster. But how can you prove your competitors test their products that way?

This is something that I'm wrestling with right now. The only saving grace is that if this is the only way to reasonably test the product, then I can probably apply for the patent. We'll see.

No comments: