What is your patent? (Or what is any intellectual property?)
It is a trespass sign.
So what is a trespass sign? It is a sign you can buy from a hardware store to put on your real property. It warns people if they step on your real property you have a right to take them to court to enforce your property/sovereign right against the trespasser for violating ["for stepping on to"] your real property.
When you want to enforce your rights listed under the trespass sign against a trespasser, is it free or is it part of the price you paid to get the sign? No, you have to pay out of pocket for enforcement beyond the price paid for the sign. Do you usually need a lawyer to enforce a trespass court action? Yes, you do. And yes, he/she will cost money.
So what is a patent? In a cents:-), it is a trespass sign that you purchase from the U.S. government after a few years and money spent negotiating the “size” of your property under the trespass sign (i.e. how big is your property - a narrow patent with narrow claim scope is a “small” property and a broad patent with a large claim scope is a “large” property). A patent warns an infringer that if a competitor copies the invention recited in your patent claims, then you have a right to take the competitor to court for infringing/violating your patent. The same holds true for the enforcement of a trademark.
When you want to enforce your patent against an infringer, is it free or is it part of the price of buying the patent (i.e. your trespass sign)? No, you have to pay out of pocket to enforce your patent beyond the price you paid to get the patent. Do you usually need a lawyer to enforce your patent law suit? Yes, you do - a patent litigator/patent litigation law firm. And yes, he/she or the firm will cost you money — and yes, at a “typical” patent law suit has a burn rate (budget) of at least 1M per year.
So in summary, a patent is a pretty expensive trespass sign to “buy” from the government, and it is even more expensive to enforce this sign. But is enforcing a patent worth it?
That’s an answer for another blog..:)
I want to thank my colleague and law partner, Matt Hoots, for sharing this analogy with me. He is also another patent expert (and trademark expert too).