I hear from inventors and entrepreneurs who proudly state: “there is nothing like it in the market.” I cringe every time I hear this.
There are two explanations for this statement. One is that the entrepreneur has uncovered something that seven billion people have overlooked. The other explanation is that seven billion people do not think this is a problem worth solving.
In the first explanation, the inventor is smarter than seven billion people. In the second one, at least somebody out of seven billion people is smarter than the inventor. Which is statistically more probable?
The statement that “there is nothing like it in the market” is a dead giveaway that the entrepreneur is not being realistic.
There is ALWAYS a Competitor
First, there is always a competitor, even if the competitor is the status quo. In most cases, the biggest competitor is when a customer does not feel like there is a need for change.
Second, anyone who enters a brand new, uncharted market will go broke trying to acquire customers. The startup landscape is littered with companies who “broke new ground” and failed. Google came long after Lycos, AltaVista, and many others. Facebook came after Friendster, Myspace, and countless others.
The fact that nobody is solving the problem is a statistically significant data point: It means nobody thinks it is a problem worth solving.
Patent Value Must Compare the Invention to Current Situation
In order to design around a patent, we need to know what a customer does today for addressing this problem. Then, we compare our solution to the existing solutions (which may be nothing: the status quo), and we try to imagine other ways to address the customer’s need.
The only patents that have value are patents that address the *single best way* to solve the customer’s problem.
If there are several alternatives that more or less address the customer’s pain point, a patent that captures merely one solution is worthless.
If I were to sue an infringer, I only want to do so when I have something so valuable that they need to pay a license. If my patent covers only one way out of several to solve a customer’s problem, my patent is just a minor bump in the road, not a toll gate that they need to pay for a license.
A patent is valuable only when it is so good that all other solutions pale in comparison.
Think about Apple’s “slide to unlock” patent. Before iPhone, every single cell phone had a green button and a red button. The green button answered a call, and the red button ended it. When Google designed Android, they could have designed around “slide to unlock” by simply putting the conventional green button and red button on the phone.
However, “slide to unlock” was such a compelling figure that Google included it on their Android phones. Apple and Samsung are waged in an epic patent battle with “slide to unlock” at the core.
Very few ideas are valuable patents.
This is because most inventions are merely a different way to do something. It is rare that an inventor has a “green field” to invent. It is rare that they run across a problem that has never been solved.
Nobody Would Do It Any Other Way
Sometimes, the inventor says that they would know if someone infringes because nobody else would do something any other way. In essence, they are saying that their way is the best, most optimized way to do something.
This is a common fallacy of many inventors: they believe that their way of thinking is logical and thoughtful. Most of the time, their thinking is the best, but only for their situation. They have worked on their problem for a long time, and they have thought through all the options. At each turn, they recognized some problem and then worked out the best solution.
For many inventors, their solution is the fully optimized, most logical way anyone would approach the problem.
The way to recognize this inventor: they can be dismissive when alternatives are suggested. “Nobody would want to do it that way,” then go on to explain why the alternative has some problem with it.
This inventor is quite myopic. They see the world from their vantage point and struggle to see how other people might approach their problem differently. It may be as simple as the inventor is looking at the high end, low volume end of the market, which has certain needs, but someone else might attack the low end, high volume consumer market, which has different needs.
It takes a lot of guts to think of ways to tear down your invention through a “design around” analysis. A common fear of first time inventors is that their baby might be ugly and they cannot stand any criticism.
The “Design Around” Analysis is Essential to Choosing to Get a Patent
One of the most important analyses to do on an invention is a “design around” analysis.
We want to know how someone else will get around our patent if we tried to block them.
The best way to think about this is to imagine yourself being sued by someone with your patent. How would you respond? What would you do differently to get around your own patent? If there are several different alternatives, the patent does not hold much economic value.
If your patent is the single best way to solve a problem, it might be one of those really valuable patents.