Why are patents so important?

by Mark Malek

Patent rights are derived from the U.S. Constitution.  Many people mistakenly call patents rights a monopoly, but that isn’t exactly accurate.  Patent rights are not a true monopoly, as the Government does not grant you a right to make something.  Instead, the right granted allows the patent holder to exclude others from making, using, selling or offering to sell the invention that is protected by the patent.  In most cases, i.e., utility patents, that right lasts for 20 years from the date the application is filed.  For simplicity, I will not get into the patent term adjustments or other patent rights that may not last as long as the utility patent rights, e.g., design patents.

The patent system is intended to reward innovation.  Any inventor out there that has tried to bring their product to market knows how long it takes and the cost involved in bringing their invention to market.  Even the simplest of inventions can cost tens of thousands of dollars to bring to market.  This is true when it comes to mechanical inventions, but especially true in the pharmaceutical industry.  We always hear critics that vilify the pharmaceutical companies say that their drugs shouldn’t be so expensive because it only costs a penny to make each pill.  That’s not exactly accurate.  Sure, pill number 2 – 10,000 only costs a penny each, but that first pill had a cost in the millions (and sometimes billions) in research and development costs.  An often-cited research study on the subject put the number north of $800 million in 2003.  Shouldn’t any inventor that has put forth the time to develop their invention be allowed to recover their costs and profit from their innovation without others merely copying them?  The answer to that question is obvious.

Patents, when properly used, afford inventors the rights to develop their products, recover their costs and, if they put together a good business plan, possibly profit from them.  Patent protection can prevent someone from profiting off of the hard work of the inventor.  Without patent protection, the inventor does not have a protectable right.  Patent protection provides inventors access to the courts to enforce their rights against an infringer.  Without a patent, there is nothing to stop someone from copying an invention and selling it as their own.  I don’t mean to say that there is no way to profit from your invention without a patent.  I only mean to imply that without a patent, stopping someone that steals your idea and runs with it is nearly impossible.

Stay tuned for future posts when I discuss how patents can be improperly used and the different ways available to inventors to protect their inventions.