[Ferro List] To patent or not to patent

[Keith B]

Hi Uwe

There are tactics which you might follow if you have a patent, and 
others if you are getting the short end of a confidential disclosure.

If you have a patent which is being infringed, remember that the essence 
of a patent is not your right to use or license your invention, but your 
right to exclude others from using it.  Don't sue for damages - that's 
just money - but for an injunction to the infringer to cease and desist 
from infringement.  Simultaneously and publicly tell your tale and offer 
to sell your rights to the infringer's business rivals.  That puts the 
onus on the court to follow the law, with further infringement then 
being contempt of court as well as cause for further legal action for 
damages with punitive damages assessed taking into account flagrant 
failure to follow the court's orders.  There's the threat or actuality 
of continuing bad publicity, and the situation may be attractive for 
some level of investment by the infringer's rivals.  With luck, making 
your intentions plain may make it more economic to buy you off.

If the question is a confidential disclosure, your position is much 
weaker than if  you had a patent, but there are some points to consider 
and possibly put to the disclosee.  The possible complexities are beyond 
space available here (off topic space too?), but basically you can 
prevent the disclosee from patenting your invention unless he commits a 
"fraud on the patent office" by claiming to be the original inventor 
when he wasn't.  That doesn't stop him from simply using what he learned 
from you, but there's the threat that you might take the idea to his 
competitors  - and have something in reserve which might support a more 
advanced patent locking the disclosee's investment into an inferior 
product or process.  That's a harder nosed position than just pointing 
out that, if you don't get treated right, your valuable expertise will 
be unavailable.  Further, if you have been careful about maintaining 
your confidentiality, you can still apply for a patent, or threaten to, 
whatever the disclosee does.    There are rules for determining the 
first inventor, and the U.S. Patent Office has a confidential disclosure 
scheme to establish precedent  which is very cheap for small inventors.  
You may have something like that.  You may have little money for legal 
costs, but frauds on the Patent office are criminal and taken very 
personally by officials who have state resources to work with, not 
something even big companies want to mess with.

That noted, nothing is fool-proof.

kb

Uwe Brunjes wrote:
> Hi Keith,
> The legal situation in Mexico is basically the same,...
> Or is there a fool-proof way to protect your intellectual property? ... Something I overlooked?
> Uwe
>   



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