Collaborating on your Invention

More often than not, two minds are better than one. Add in several more brains, you get even better. And when it comes to inventions, sometimes you will need all the help you can get. Especially if that help is in the technical form.

Although collaboration is often the lifeblood of any great invention, you should also know that collaboration also necessitates proper credit being given. But this credit is not just an Academy Awards speech where the actress thanks everyone from her agent down to the hair dresser to her assistant that walks her dogs during her auditions. Unlike the actress, when you give credit on an invention you are also giving some money away (possibly).

Let's say that you and a buddy are working on a new invention that is a green car transmission that is an assembly of 1,000 different parts. When it comes to the invention itself, it was a labor of love and you've been working on it over the past 5 years or so dedicating at least 20 hours per week on it. You spent over $50,000 on it for R&D. Your buddy, on the other hand, is kind of lazy. And in that 5 years he told you to use a rubber gasket on one of the parts. And just to not make him feel bad, you decide to add that into the claims of the patent application to make him feel good about himself. And upon the advice of your patent attorney you name him a co-inventor.

Now, as logic and reason would have it, you should be given 99.9% of the royalties and rights in the patent because it was almost all your genius and hard work. That .01% that your buddy contributed was just a "pity credit". As such, he should only get .01% of any royalties, etc. even though you might not even use his advice into your final products anyway.

Well, unfortunately, as per patent law, you and your lazy buddy are now 50-50 partners. There are going to be no courtroom disputes, no lawsuits, etc of you trying to prove how much more you provided to the endeavor as your buddy. Bottom line: if your buddies' contributions make its way into the claims of the patent, he becomes a co-inventor. And as such, without an agreement to the contrary, he is now entitled to 50% of those royalties. No ifs ands or buts.

You should also know that failure to properly credit someone who contributed to the claims of your patent is grounds for dismissal or rescission of your patent rights.

Collaboration is great. You just need to think long and hard about what gets into the claims of your patent.

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DISSECTING A PATENT APPLICATION: Sort of like baking with Betty Crocker

Many of you are wondering why patent attorneys charge so much to produce a document called a patent application. A lot of people believe that patent attorneys are ripping off their clients because all they have to do is checkmark some boxes, send in some drawings, and you're good to go.

Well, let's get something straight. A patent application is more than some blank spaces with boxes to check. Now there are some forms like that too, but the process of making a patent application is actually quite complicated.

A patent application is kind of like a really tough and long term paper you had in high school or college. Only this term paper is a lot tougher because you will have some smart guy or gal in Alexandria, Virginia analyze just about every word of your patent application in excruciating detail.

Example: A patent examiner will ask you what you mean in claim 7 by the words "door knob". To you this may seem like common sense. A door knob is a door knob is a door knob. However, to the 4-eyed nerd in the USPTO he will say that well, there are round door knobs, there are steel door knobs, there are wooden door knobs, some are spring loaded, etc., etc., etc. You will be shocked at how a lot of times you will have to fight with them on what common every day words mean.

As a matter of fact, when it comes to patent lawsuits, the very first stage of a patent infringement lawsuit starts off with "Markman Hearings". Patent Litigation lawsuits are the only lawsuits in the USA that have "Markman Hearings". At these hearings, lawyers spend weeks arguing over what words mean. A patent infringement case can be won or lost simply by defining the meaning of the word "rubber band". Markman hearings are so important, in fact, that many attorneys believe that most patent infringement suits are won and lost in these hearings where people are arguing over what certain terms mean.

Anyhow, a patent application is made up of the following parts:

1.) The background of the invention. In this part you are basically describing the market for your device. Let's say that you invented a new golf club for short people that telescopes or something. You would describe the problems for short golfers and the needs that are being unmet in the marketplace. You don't describe your invention in this section. This is just background material. Patent Examiners rarely read this section of the patent application unless they are really bored and have nothing else better to do.

2.) Summary of the Invention. Self explanatory.

3.) Specification/Description of the Preferred Embodiments.

This part of the patent application is sort of like the box you get when you want to bake a cake by Betty Crocker. On the side of the box it will list all the ingredients. And on the back of the box, it will tell you how to mix those ingredients, how long to cook it and so on.

Well, you can think of this section of the patent application as the back of the Betty Crocker box and the ingredients. In this section you are basically trying to spell out how your invention works, how its made, what parts you made to use it, how to assemble it, etc. You only need to give as much detail as what a person "skilled in the art" would know (more on this term in a later blog post).

And also in this section you will be referring to your professionally made drawings. Ever bought a desk or cabinet at Home Depot, emptied out all the parts and pieces and opened up that white sheet of paper with the drawings, numbers, and instructions. Well, the specification is kind of like that. It will say, part X (102) is connected with part Z (103)...

4.) The Drawings. Self Explanatory

5.) Claims. Now here is where the real action comes into play. This section is where the rubber meets the road. This is where you claim what your invention really is and that part or section of it that is novel and protectable.

If you think about buying real estate or buying a home, every piece of real estate has title. And every title document has a description of where that parcel of property is located and what the boundaries of that property are. This may be done through coordinates, surveying, etc and by describing where that property line really is.

Well, that's basically what you are doing with the claims section. You are describing in painstaking detail exactly and precisely the boundaries of what you think is patentable about your invention.

6.) Abstract. The abstract is a short and sweet summary of your invention. It should be about one or two paragraphs that describes basically what the invention is. It does not have much legal significance in itself. It is just that first paragraph that comes up when someone is doing a patent search and wants to know quickly what your invention is really all about.

NDA's

What is an NDA? An NDA is a Non-Disclosure Agreement. This basically says that if you are the inventor and if you would like to show off your invention to a prospective manufacturer, bidder, distributor, store, etc. that you reserve your rights in the Intellectual Property. In theory, an NDA will prevent the other guy from taking your idea and running off with it.

For most inventors, they are surprised to learn that when they want to show off their invention to any other corporation, the other corporation will refuse to sign any NDA that is not already prepared by THEIR attorneys. And you can rest assured that then NDA that is prepared by THEIR attorneys, will not be very helpful to you. However, you should know that any NDA will not permit the other guy from running off with your invention insofar as you already have a patent application pending with the USPTO.

So what should you do if a corporation does not want to sign your NDA? Well, this is a business decision, but chances are if you already have your pending patent application, you will probably be fine with or without an NDA. However, you should be careful to only disclose those elements that cannot be quickly reverse-engineered. And you should not submit your patent application with your disclosure as this will enable their engineers to get around your patent with impunity.

INTERNATIONAL PATENTS?

Is there really such a thing as an international patent? Nope. The closest thing to an international patent is the European Patent with the EPO. Through the EPO you can get a patent that covers all of the member countries of Europe. However, you should know that anything outside of those European countries is fair game. You should also know that a US patent from the USPTO is still considered more valuable because the USA is the largest market in the world when it comes to discretionary income.

Now I know that many of you are wondering about the PCT. The PCT is not a patent at all. The PCT, or Patent Cooperation Treaty is simply a delaying mechanism and nothing more. Under the PCT, you can buy yourself some time to figure out which countries you would like to purse a patent application in. The PCT, by itself, absolutely does NOT give you any sort of patent rights at all! If your PCT application is granted, then you will still have to hire a patent attorney in each and every country in which you would like a patent application. And you will have to do it according to the laws of each country you plan to patent in. Without follow up, a PCT application is not worth the paper it's printed on.

Many people mistake the PCT as an "international patent". I don't know why this is. It is true that through the PCT, you can help yourself get patent protection in many different countries, however, at best the PCT is just a delaying mechanism rather than a patent itself.

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