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 Keep Your Competitive Edge: Patents for Your Products and Business Practices By Jonathan A. Harris Attorney, Wildman, Harrold, Allen & Dixon In today’s economy, gaining a competitive edge often means being first to market. Keeping that edge requires action to protect profitable ideas from the competition. Knowing how to effectively guard the fruits of your labor can mean the difference between capitalizing on your innovations and watching them fade from the shelf. One of the best ways to enhance a new product’s profitability and market share is to work with legal counsel to obtain a patent. You may be surprised to learn just how many ideas are eligible for patent protection. A patent is a legal monopoly that affords its owner the right to exclude others from making, using, selling or importing an invention for a period of time. The Importance Of Patenting Your Company’s Ideas This right to exclude others offers many benefits. A patented invention can establish a new industry standard, while providing a significant barrier to entry. Suppose one of your employees, rather than “kitty litter” founder Edward Lowe, had invented clay-based cat litter. A well-crafted patent would have allowed your company to build and dominate a profitable new market sector. Licensing or assigning a patented idea can mean big money. Although some companies still assume profits stream from brick and mortar assets, others understand that substantial profits can be derived from licensing and selling patented ideas. License agreements, which entitle a patent owner to a percentage of the licensee’s sales, can produce lucrative royalties. Selling critical patents outright can raise millions upfront. Patent protection allows owners to take legal action to prevent others from making, using or selling the patented invention. A patent owner who prevails in a patent infringement lawsuit may obtain a court-ordered injunction that prevents a third party from making further use of the patented invention without the patent owner’s consent. Courts also may award money damages. A patent is an asset that can increase the value of your company. Banks consider patents to be assets, which can be used as collateral to secure financing. Potential purchasers of company assets also value patents, which can be used as leverage in merger and acquisition negotiations. Identifying Opportunities Company-generated ideas subject to patent protection may be more common than you think. Almost anything under the sun made by man is eligible for patent protection. For example, U.S. Pat. No. 4,233,942, entitled “Animal Ear Protectors,” describes a device for protecting the ears of animals from becoming soiled while an animal is eating. The U.S. Patent Act establishes several classes of subject matter that can be patented, including methods, compositions of matter, machines, manufactures and designs. A “method” is an operation or series of steps leading to a useful result. Patentable methods are often subdivided into methods of use and methods of manufacture. A method for training dogs with whistles of different pitch is a method of use, while a method for making flavored pet food is a method of manufacture. A “composition of matter” can be defined as the mixture of two or more ingredients. Composition of matter patents protect various types of patentable inventions within the pet industry, including pet food and cat litter. The “machine” category covers any apparatus of a mechanical and/or electrical nature. Automated animal grooming devices, self-cleaning litter boxes and pooper scoopers are just a few examples of patentable machines. The “manufacture” category encompasses man-made items that are neither compositions of matter nor machines. Examples include pet-related board games and pet carrying cases. A “design” covers the non-functional ornamental features of an object. The shape and appearance of a dog bone or chew toy are subject to design protection. Procuring Your Patent A registered patent attorney can help determine whether your company has patentable ideas, and guide you through the process for obtaining patent protection. The first step typically includes a “prior art” search, to determine whether the invention meets the dual requirements of patentability, namely novelty and non-obviousness. To be novel or new, an invention must differ in some respect from that which came before. Additionally, a patent owner’s own public use or sales activity more than one year before filing a patent application can destroy novelty. To meet the standard for non-obviousness, the invention must have differences that would not have been obvious to those skilled in the field of endeavor. Once you decide to seek patent protection, your patent attorney will prepare an application with technical input from the inventor(s). The PTO examines the application to make a determination of patentability. With some exceptions, issued patents remain in force for a period of twenty years from the application filing date. From machines to disposable goods, nearly everything invented by humans has the potential to be patented. But gaining a competitive edge through patent protection requires action. Turning to a patent attorney in the earliest stages of development helps protect your ideas from encroachment by others. Jonathan A. Harris is a registered patent attorney in the Intellectual Property Practice Group at Wildman, Harrold, Allen & Dixon in Chicago, Illinois. Mr. Harris can be reached directly at (312) 201-2189 or by email at harrisj@wildmanharrold.com. Additional information about the author is available at http://www.wildmanharrold.com 
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