Worthless Patents – How to Avoid the Biggest Pitfalls

Worthless patents: they don’t have to be that way.

Worthless patents happen for two reasons: the original invention was not selected properly and the patent was poorly prosecuted with the patent examiner.

Properly selecting the invention is crucial for getting a good patent. Your conventional patent attorney will tell you if there is prior art, but will almost always recommend getting a patent on your idea. The attorney will rarely evaluate the invention for enforcability, and the attorney will never perform commercial applicability or economic analysis of the invention.
Enforcability analysis is crafting the invention to read on the possible infringers of the technology. You want to make sure that the patent is directed at the proper infringer, which usually means your competitor – not your customer. This analysis is often much harder than it looks, and it is very tempting for your patent attorney to take the easy way out to get a patent on something that only your customer does.

Enforcability also means crafting the claims to describe something that is detectable. Inventions that are not detectable are impossible to enforce, and many software patents are sadly in this category.

The economic analysis of the invention is an attempt to estimate the actual commercial value of the protection that a patent could afford. This is a dollars and cents analysis of the benefit of the invention *measured against the design around costs.*

Worthless patents are often poorly prosecuted. Sometimes this is the fault of the patent attorney doing a poor job, but many times it is a result of the *client* who puts too much pressure on getting the patent issued quickly. Getting good claims from the examiner is usually expensive, and will often take 4 or more Office actions to get, not to mention going up on appeal if necessary.

Clients don’t like the continual stream of Office actions, each one rejecting the claims for some reason or another, and where each Office action costs lots of money. They want to know their chances of getting something allowed, how many more Office actions will it take, and basically how do I stop this bleeding.

In countless cases, the attorney is forced to take claims that the examiner suggests, even when those claims are awful from a commercial value. But the client is so budget constrained that the result is a worthless patent. It is heartbreaking to see potentially million dollar patents go to the wayside because clients are too focused on saving a couple dollars.

BlueIron’s business model is designed to only get good patents. We take the budget problems off the table with the client, since we provide all of the financing and pay all the expenses. We are much more ready to go to appeal or otherwise invest the time and energy to get good patents because we view that patent as our collateral.

BlueIron’s due diligence at the beginning of the invention phase weeds out the problem inventions and takes only those inventions that will have commercial value. We reevaluate at each step to make sure the patent is progressing towards our intended commercial value and will correct course if necessary.

Why waste your time and money doing poorly crafted and inadequately prosecuted patents?