To Patent or Not to Patent?
When it comes to inventing, the very first thing you need to do is protect your idea before anyone can steal it, right? Well, if you base your decision on TV commercials or the many invention websites out there touting patent services, the answer is a resounding "Yes!"
However, if you base your decision on a little business sense--and the fact that your idea is an opportunity, not just an invention--then the answer is more likely, "No--but maybe later."
The simple fact is, a patent is a valuable tool--but it's hardly your number-one ticket to success. And before you invest thousands of dollars in securing a patent, there are steps you should take to ensure that it's a smart business move. After all, only 2 to 3 percent of all patented products ever make it to market.
That's not to say you should never get a patent. In fact, I've filed for patents for most of my products. But I do believe that filing for a patent shouldn't be your first--or even a required--step.
So what should your first step be, then? Before you decide to move forward with a patent, it's critical to first evaluate your idea as a viable business opportunity. This means understanding your product, your target market and your competition as best you can. This information goes far beyond your gut feelings and the encouraging comments you've received from friends and family. It's based on solid market research and attention to product development. After all, you could spend the time, money and energy to secure a patent for your widget only to find out--much later--that there's no interest for it in the real-world marketplace. By then, you've not only lost a significant amount of money, you've also reached a dead end.
So before applying for a patent, thoroughly consider the following factors:
- Patent research. Make sure your idea isn't infringing on someone else's patent. To do that, you should conduct a "preliminary patent search." This step will help ensure that your idea hasn't already been patented. You can either hire an expert to help you or perform this step yourself. (More advice on this later.)
- Prototype. You should develop a basic prototype to determine your product's functionality. This ensures you have a close-to-final design when you do file for a patent. (Changing materials or mechanics is difficult once your patent's been filed.)
- Market research. Define your market and determine how large it is. If it's too small, your product may not be commercially viable.
- Cost to manufacture. Determine how much it will cost to manufacture your product. If it costs more to make than the market is willing to pay, your invention is just a money pit.
Once you've determined there are no roadblocks to commercial success, it's time to consider whether or not you need a patent. Just as many inventors patent their ideas and never take them to market, thousands of products in the market today aren't patented--or even patentable--at all. In addition, your attorney may recommend filing for a copyright or trademark instead--an easier and less expensive process--if it makes legal sense.
So what exactly is a patent anyway? A patent is a right granted by a government to an inventor. It gives the inventor the exclusive right, for a limited period, to stop others from making, using or selling the inventor's product without the permission of the inventor. When a patent is granted, the invention becomes the property of the inventor. A patent--like any other form of property or business asset--can be bought, sold and licensed.
You may be thinking "Sounds great--so why wouldn't I want a patent?" If you have unlimited time and money, there's actually little downside to applying for patent protection. However, in the real world, you'll have other concerns vying for your attention and limited resources. So let's evaluate exactly what a patent can do--and can't do--for you as an aspiring entrepreneur.
Benefits of patent protection:
- If you're planning to manufacture and sell your product yourself--as opposed to licensing it to another company--a patent can help you better justify your investment in design, production and marketing. That's because you'll have the comfort of lead time over those who might "knock off" your product, and the peace of mind that your invention is protected by law and that this protection can be enforced if someone infringes on your rights.
- If you're planning to license your product to another company, a patent can be a valuable asset during negotiations. Because you've reduced the prospective company's upfront legal costs--and risks--a patent can provide leverage to ask for a higher royalty payment. Your patent also gives a company the confidence that they won't be infringing on another patent if they license your idea. (In fact, many companies you might want to sell your invention to are only willing to consider licensing patented or patent-pending inventions.)
Drawbacks of patent protection:
- While a patent can never hurt you, keep in mind that your patent protection is limited to the extent that you're willing to enforce it. Unfortunately, there are no "patent police" out there, ensuring that your idea won't get stolen. If someone infringes on your patent, you'll need to spend even more time and money on legal fees to rectify the situation. In addition, patent claims are very specific--meaning it's typically not very difficult to legally design a similar product. That's why you see so many great new products--even those produced by large corporations with equally large pockets--knocked off and released by competitors.
So you've evaluated your business opportunity, you've weighed the costs vs. benefits of securing a patent, and you've decided to go for it. What now?
There are a few more things you need to know about patents and a few resources to evaluate before moving forward. Before you do anything, however, you should perform a comprehensive, preliminary patent search.
To conduct a search for "prior art"--that is, someone else's similar invention--you can begin by doing so yourself on the U.S. Patent and Trademark Office's (USPTO) website . Follow the directions on the site to begin conducting your research. If you've decided to hire a patent attorney or patent agent, they'll conduct this step for you before they actually file for your patent. Which leads us to your next step...
After you've completed your preliminary patent search, your next step is to find an expert who can help you. While anyone can write a patent--including you--the patent writer must have the ability to understand the format requirements and the implications of using specific language and terms to present an invention adequately. For this reason, I recommend you consult a patent attorney or patent agent.
A patent agent, plainly and simply, writes patents. One of the advantages of using a patent agent is that he or she will probably charge substantially less than a patent attorney. Note, however, that patent agents, unlike attorneys, don't have the formal training or ability to defend or enforce a patent in court, should the need arise. A patent attorney has also passed a separate bar exam specific to patents. Just as with all professionals you'll hire in the course of doing business, there are good and bad patent agents and attorneys out there, so evaluate your choices on an individual basis and based on your budget and comfort level. (When you're trying to decide, remember this old adage: "It can be very expensive to hire a cheap lawyer.") If you do decide to go the attorney route, I'd recommend using one who's registered with the USPTO .
The most important thing to do when evaluating your final decision to get a patent is to keep an open mind. While most patent attorneys will recommend filing a patent, don't surrender your business decision to one advisor. It's important to understand that a patent can be a valuable tool--but never a guarantee that you won't face direct competition. Good luck with your decision!
For reprints and licensing questions, click here.