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You have an invention idea, and you'd like to protect it. But when is the right time to patent and how do you find the right person to help you?
First decide whether to patent your idea at all. While it's usually not a bad idea to get a patent, it's important to realize that the protective benefit is often less than expected. And, the patenting process is time-consuming and expensive. If a patent uses up every last dollar so you can't actually manufacture and launch your product into the marketplace, you may want to reconsider it. I've met people with very expensive patent certificates, but no finished product. However, if money is not an issue, patent protection can help.
So when is the best time to get a patent? Should you have a finished prototype for your idea first? That's ultimately up to you. If your idea is complex and mechanical in nature, it's a good idea to take your prototype as far as you can.
Your prototype may require changes to avoid infringing on another patent, so don't stake the farm on your prototype before beginning the patent process. That said, you can begin searching for legal representation as soon as you've fully developed your idea, determined there's a market for it, and decided to launch it.
There are a number of legal resources available during this process, including patent attorneys, patent agents and patent search firms.
Pinpointing a Patent Attorney
The legal field of intellectual property is so complex that you'll need a professional who specializes in the field when considering a patent. There are two types of attorneys.
One is the registered patent attorney, who has an additional degree in a field such as engineering or science and who must pass two bar exams: their home state's and a federal patent bar exam administered by the United States Patent and Trademark Office.
The other type of attorneys, intellectual property attorneys, doesn't require training beyond law school and passing the state bar. I recommend using an attorney registered with USPTO. They can be found by geographic region at www.uspto.gov. Input your zip code to find attorneys registered in your area.
Once you've found an appropriate attorney, there are some things to know about the patenting process:
- Ask questions. The first question to ask your attorney is, "Is a patent appropriate for my idea?" Your attorney should advise you on the best path--whether it's to apply for a patent, a copyright or a trademark, or nothing at all. Next ask your attorney to explain the process of obtaining the form of protection that's right for your product.
- Bring as much information as you can to your first meeting. This will give your attorney the best mental picture of your invention. If your idea ends up requiring a patent, the records, drawings, prototype and written description of your invention will help your attorney get moving.
- Expect to wait a while. The time it takes to issue a utility patent (the most comprehensive form of protection) depends on the complexity of the technology. For simple devices, it takes approximately 24 months at the minimum. For more complex devices, it can take more than three years from the date of filing. A design patent (which protects the design of your invention but not its function) can take about nine to 12 months to obtain.
- It'll take some money. The cost of filing a patent hinges on a number of factors, two of which have a particularly large impact. The first factor is who you hire to file it. A big-city firm with staff attorneys specializing in everything from real estate to intellectual property will generally cost a great deal more than a local boutique firm specializing in intellectual property, or a patent agent.
The second factor affecting cost is the complexity of your idea. A widget that has many moving parts, sophisticated engineering and extensive design variables will cost more than a simpler one- or two-piece mechanism. For my company's own products, we have paid anything from $1,700 for a provisional patent filed by a patent agent up to $10,000 for full patents filed with the help of an attorney.
The Scoop on Patent Agents
The Scoop on Patent Agents
Patent agents provide an alternative to hiring more expensive patent attorneys. A patent agent writes patents and deals with the patent office. While anyone (including you, although I don't advise it) can write a patent, the patent writer must understand the format requirements and the implications of using specific language and terms to present an invention adequately so that it's fully and non-restrictively described.
That's why a patent agent with the experience and know-how can be helpful. This service is sometimes substantially cheaper than using a patent attorney. Like attorneys, patent agents' level of expertise and knowledge varies by individual. Carefully evaluate an agent's background before hiring him or her, as you can find extremely talented people if you're careful.
The possible downside to using a patent agent rather than an attorney is that a patent agent isn't able to defend or enforce a patent in court, should the need arise. In addition, a patent agent may have less training than an attorney and may write patents perceived by some as not being as well drafted as an attorney's. Be sure to understand any patent agent's (or attorney's) specific experience and background.
What About Patent Search Firms?
If you're considering filing a patent, a patent search can help you avoid infringing on another person's patent, as well as determine whether the protection gained from your own patent justifies the effort. While this is a step that's built into the traditional patent-filing process, take this step independently if you decide to opt out of filing a patent.
You can purchase a basic search performed by experts who use some of the same databases as the examiners at USPTO for approximately $250 to $800. Keep in mind that any preliminary search won't be as complete as the one done by USPTO because of the 18-month period of secrecy for filings. To find a reputable company, visit the United Inventors Association . Look in the "Resources" section for a list of companies that can help conduct patent searches.
An alternative to the traditional full-blown patent, such as a provisional patent, trademark or copyright, may make more sense for your particular product. Your attorney can advise you on which route is the most beneficial.
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