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Chapter 8 Patents
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Learning Objectives
1. Explain why firms can easily and quickly imitate most of their competitors products and services 2. Define a patent 3. Identify the different types of patents 4. Identify the key parts of a patent 5. Outline the trends over time in the expansion of what is patentable 6. Define patent infringement 7. Discuss the benefits and limitations of patenting
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What Is Patentable?
A patent is a government-granted monopoly that prevents others from using an invention for a specified period of time in return for the inventors disclosure about how the invention works
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First to Invent
The U.S. patent system differs from the patent systems in all other countries (except the Philippines) because the United States awards patents to the first party to invent something, not to the first inventor to file for a patent
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Nondisclosure
In the United States, patents are only awarded for inventions that have not been offered for sale, and have not been publicly disclosed, either in an open forum or in print, more than one year earlier
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Raised issues:
Backlogs in the patent office More patent disputes Innovation hindered by property rights Blocking follow-on research
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Number of Claims
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Pioneering patents
A special case of patents with strong claims, which the control of these patents is important because they can be used to extract royalty payments from a large number of users Pioneering patents and patents with broad claims are especially important if starting a company The more pioneering the patent, and the broader its scope, the more competitor firms one can deter from imitating the new product or service
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Patent Litigation
Patents provide the right to sue others if they infringe on the patent by making, using, selling or importing something covered by the claims of the patent If a company wins a patent infringement lawsuit, it can obtain:
An injunction prohibiting the infringing activity Lost profits or imputed royalties are common penalties when infringement is accidental As much as triple damages for willful infringement
Because patents that are invalid cannot be infringed, a common defense against infringement is to invalidate the patent by demonstrating that the inventor had disclosed the invention prior to filing for the patent, or that the invention is obvious to a person trained in the art Because small and new firms must spend a large portion of their revenues and senior management time to enforce their patent rights, large, established firms sometimes willfully infringe their patents, believing that they do not have the money or energy to fight back
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Patent Trolls
Patent trolls are companies whose purpose is to buy up patents and enforce their claims through litigation or threat of litigation
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Advantages of Patenting
Patents can:
Slow imitation Facilitate legal protection of intellectual property Enhance value chain leverage Make markets for knowledge possible Help new firms to raise money
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Barrier to Imitation
Patents can be an important barrier to imitation, and a powerful mechanism to capture the returns on innovation
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Legal Protection
Patents also help companies to use the legal system to protect their intellectual property
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Fundraising
Patents help new companies raise money because they provide a verifiable source of competitive advantage. Investors can see the mechanism through which the new venture will deter imitation, reducing their uncertainty about the value of the venture
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Disadvantages of Patenting
Not always effective at deterring imitation Gain may be greater by keeping it a secret Pace of change may make patent irrelevant Difficulty proving infringement
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Benefits of Nondisclosure
Patenting is disadvantageous when a company will gain more from nondisclosure than from a governmentgranted monopoly A patent gives a 20-year control on the invention, but secrecy might allow that control to last longer
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Pace of Change
When technological change is very rapid, the invention that a patent protects will quickly become irrelevant. Given the time it takes to obtain a patent, and the cost of patenting, one probably wont be able to earn sufficient payback to justify the investment in it
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