Do I Need A Patent?
Should I Patent My Idea Or Invention?
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RULE #1: Just because you want and/or
apply for a patent doesn't mean that you will automatically
get one. You have to prove to the patent examiner at the
U.S. Patent & Trademark Office in Washington, D.C. that
you deserve a patent.
For better or for worse, the burden falls entirely on you,
the inventor, to clearly communicate the facts about your
invention, and the facts about the invention must meet the
stringent requirements that the PTO uses to vet patent
applications.
The very most important first step an inventor must take is
to carefully document their invention. Documentation is key
in securing future rights to your clever new idea. The
"paper trail" you create about your invention is extremely
important and it needs to be kept in an organized,
recognized format in order to be most useful and give you
the best chance of successfully being granted a patent for
your invention.
You will be creating an "Inventor's Logbook" that forms the
basis of your claims of novelty and reduces your idea to
practice, a legal term which roughly means being able to
demonstrate that your invention actually works.
Your logbook will be like your invention diary. You should
journal EVERYTHING you think about and do with your idea -
features and functions you envision, who you talk to about
the invention, what you do to develop it, etc. Your
sketches should be kept in your Inventor's Logbook as well.
The idea is to establish "first" or "primary" claim to the
intellectual property your invention represents. By having
all your writing, sketches, and even your messy scribbles
carefully and methodically dated and annotated, it makes it
much easier for you to establish when your idea was first
conceived and that it was you who conceived of it.
Having set up and filled up your Inventor's Logbook, now
you need to decide if the long waits, cost and hassle of
obtaining a patent is worth it to you.
RULE #2: You need a very specific answer
to a very specific question: Why do you want a patent? If
the answer is "...so I'll be protected..." you still have
some very important homework to do here on this site and
you are clearly not ready for that step yet. This should
not be considered a put-down. Before you plop down
potentially thousands of dollars, you should know what you
are paying for, right? Right...
So, let's look at the 3 primary issues that you should
consider when thinking about seeking a patent for your
idea:
Market Potential: Have you done the
necessary research to determine the true market potential
for the idea? There are many types of useful, clever and
marketable products with a fairly limited or local appeal
that can make an entrepreneurial inventor a lot of money
but might not be worth the effort to seek patent protection
for.
Understand, a narrow or specific market focus doesn't
automatically mean a product isn't worth the time and
expense of obtaining a patent either. The intelligent
inventor knows that there is a balance between what can be
patented and what can be enforced effectively.
Licensing or Selling The Invention: When
companies acquire the rights to inventions and new product
ideas, they're actually acquiring your right to profit from
the product. If you have not effectively established
ownership or asserted those rights however, it is
exceedingly more difficult to convince a company to invest
in the idea. That said, many inventions require the
refinement and assistance of the manufacturer to finalize
the design specifications of the product and premature
patent filings can hamper this elemental aspect of early
product testing and development.
The use of non-disclosure/non-compete agreements can be
very effective in protecting you ability to still make
first claim of ownership, while keeping the product specs
open to improvements that are discovered through testing
and refinement.
Perceived Value: The more expensive the
product is, the better a candidate it becomes for the
investment necessary to obtain patent protection. A product
that sells for $1.99 will take a lot longer to recoup
patent expenses than a product that retails for $1,999
will.
The good news is that once a patent is granted by the U.S.
Patent and Trademark Office and issued, you will have
successfully become a patent holder and truly "own" your
invention. The bad news is that this doesn't mean that you
are now "protected". There are no "patent police" and no
one is going to enforce your rights for you. Once you've
obtained a patent, it's then up to YOU to defend your
rights in court. Obviously, this can be a very costly
experience and the burden falls entirely on the patent
holder to proved infringement. This is what we meant when
we asked you why you wanted a patent.
Being "protected" is a very relative term. Not many
independent or small-entity inventors have deep enough
pockets or the legal resources to successfully litigate
against a large company, so understand that patents are not
panaceas.
UPDATE: Recent changes to the patent office rules have
fundamentally changed the way that patents are granted,
switching from the United States' long standing "first to
invent" system, to the "first to file" system traditionally
used in other countries. This is a very
controversial and not very inventor friendly
change but goes beyond the scope of this article. For the
purposes of this article, we will address the basic steps
that should be taken by every inventor in preparing for the
process of seeking patent protection.
DISCLAIMER: The contents of
this article are for the purpose of ongoing discussion
about the patent process and should not be considered nor
relied upon as legal advice; always consult with a
qualified patent practitioner about intellectual property
related matters.
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