My beloved Aunt Betty died yesterday at the age of 74. Unfortunately she died before we had a chance to explore the possibility of patenting her invention.
It all started one evening when I was telling Aunt Betty a bit about some of my inventions and the patent process. She told me of an invention that she had thought about and had always wanted to patent.
Her invention was a ladder with a top step that could be extended (raised) with a person on top. That way you could climb only a couple of steps and still reach higher by using this mechanism.
I can guess why she thought of this. As an elderly person in bad physical condition, she had trouble climbing a ladder, and a lift could help. It seemed like a good idea.
From that conversation, I didn’t really understand how the invention would work. I don’t know what the mechanism would be that would raise the ladder. For example, is it electric or manual?
We will never know. But nevertheless, in honor of Aunt Betty, I went to the U.S. Patent Office web site and ran a brief search on extendible ladders. I found some prior art, but it was not clear how the extendible ladder worked.
So here is the reality for someone like Aunt Betty who does not have significant resources (or a nephew who is a technology lawyer). You may have a great invention in mind, but it is expensive to seek patent protection. It’s helpful to start with a patent search to get a sense of the prior art. A patent search firm typically would have charged her between $500 and $1,000. If that looks promising, the inventor needs to hire a patent lawyer. To save money you could file a provisional patent that doesn’t have claims, but it’s likely to cost a few thousand bucks. Regardless, eventually you’ll have to file a utility patent that includes claims (the part of the patent that describes the scope of its protection), which likely will cost you $10,000. And then your patent lawyer may have to go back and forth with the patent examiner, and hopefully end up with a patent (but maybe not) that has claims with a sufficient scope.
No wonder Aunt Betty never pursued her patent.
Alternatively, let’s consider Aunt Betty’s secret pastitso recipe. Pastitso is a Greek dish made of noodles, ground beef and béchamel cream sauce, among other things. Aunt Betty’s recipe was so good that a local Atlanta restaurateur offered to purchase the recipe from Aunt Betty for $10,000, and she refused. That’s because Aunt Betty’s recipe is a trade secret. That esteemed legal journal Wikipedia defines “trade secret” as “a formula, … which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers.”
[http://en.wikipedia.org/wiki/Trade_secret] The only ones that she shared the recipe with are the next generation. She made us promise to keep her secret.
Like others with trade secrets, Aunt Betty protected it with agreements (informal ones with the family) to preserve its confidentiality. Unlike a patent, which expires, a trade secret effectively allows a perpetual monopoly in secret information. Of course, a third party could reverse-engineer the trade secret and use it without any claims, unless the third party violated a confidentiality agreement.
If Aunt Betty arranged for someone to manufacture an extendible ladder, someone might be able to reverse engineer it. That’s why she would have had to pursue a patent for the ladder design, if she had been serious about it. By contrast, it would be almost impossible to reverse engineer her pastitso recipe. So her family can protect the recipe, like Coca Cola protects the Coke formula, by keeping it under lock and key.