17 April 2019

Beware Parkinson's Law of Triviality

Parkinson's Law of Triviality is "The tendency to give disproportionate weight to trivial issues. Also known as bikeshedding, this bias explains why an organization may avoid specialized or complex subjects, such as the design of a nuclear reactor, and instead focus on something easy to grasp or rewarding to the average participant, such as the design of an adjacent bike shed." (Courtesy-Wikipedia's List of Cognitive Biases.)

A client of mine has a substantial portfolio of patents and trade marks. He called me recently in connection with the portfolio. He has decided to focus on his trade marks and to no longer file any patent applications. He is particularly excited because he is able to file his own trade mark applications.

Trade marks are not trivial. But the process of trade mark registration is quite trivial when compared with filing a patent application.

Patents can be confounding. It takes years and years to learn how to prepare an adequate patent specification. Sadly, some never learn. The law and practice relating to inventive step, sufficient disclosure and support in the description for what is claimed is highly complex. It follows that the preparation and filing of a patent application is far more expensive than preparing and filing a trade mark application.

And patents are multi-jurisdictional. So we have to stay abreast of developments at least in major jurisdictions, including the U.S., Europe, China, Japan. The procedure associated with obtaining a patent in each of these jurisdictions is also complex. European procedure can be Byzantine. Keeping clients up to date with developments in a multi-jurisdiction portfolio is demanding.

So, it is not surprising that this client chose the easy path.

However, a patent is a monopoly right that inhibits others from exploiting an invention. This should not be overlooked. So, regardless of what your product is called, you have an exclusive right. You do not necessarily have to enforce that right. But it can certainly get you to the negotiating table and trip up your competitors. A trade mark, on the other hand, is a device to protect the public against unwittingly consuming products of dubious origins. Unless the trade mark does become really well-known, it can never impart real protection against copying your products.

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