Just because you have a great idea, it does not automatically mean that you can, or for that matter that you even should, patent it.
First, should you bother? Decide if you plan to market your idea, or is it just for the personal interest value. If it is the latter case, you probably shouldn’t patent it because the process usually entails either professional help, which is sometimes not cheap, and is always time consuming to do by yourself.
However, if you do plan to bring your idea to market, then you should look a little further. Will you market your product by yourself, or will you license it to others?
Do you intend to market your invention by yourself? If so, ask if the product has “legs?” That is, is there the likelihood that the product has longevity, or is it more probably just a flash in the pan concept? Not that there is nothing wrong with quick-buck products. A lot of money has been made with them. However, you need to ask two things.
1. If I take the time to apply for a patent, will I lose my window of opportunity to cash in on my, perhaps, fleeting idea?
2. By applying for a patent, am I only giving notice to possible competitors that I am coming to market?
If, on the other hand, you plan to sell it outright or offer it through others, usually called licensees, you will nearly always need to have your idea protected by the patent process. Notice, I say here patent “process” and not patent? More on that later.
The reason is that there will be money that is changing hands, and the licensee party will want to be sure that the idea or product that they are paying for is really yours to sell to them.
As you go further into the patent process, you’ll be surprised to see how many inventors thought their ideas were "original”, but found they were already long ago claimed.
You need to do a patent search. While the patent office is set up for you to be able to do this online, you should know that this is not an easy thing to accomplish. Experience shows that it is better to pay to have it done by someone with this specific background. The entire subject of patents is quite complex. Further, your potential licensee will likely insist that you have a patent anyway, and since the first step is to do the search, so you might as well be sure you get it right.
You will get a patentability opinion, in writing. This benefits you in three ways.
1. If it is negative, you have spent less (in time at the very least) than if you proceed to try to patent your idea by yourself, only to be eventually turned down.
2. Even if it is positive, the search may have uncovered many close, but not identical, products. This increases the difficulty. It also may decrease the value of the novelty, and therefore the marketability, of your idea. Again, you will spend less if you find out early.
3. Armed with a positive patentability opinion, you will have something to show (don’t reveal the details - just the opinion) to your potential licensee.
Let’s go back to the patent “process.” What we refer to here is the marketing tactic of applying for a patent, but letting the process drag out for as long as is legally allowed. You may ask if you have a product with a positive patentability opinion, why would you not want it patented just as soon as possible? Here’s the “dark” answer.
The details of all patents are a matter of public record. After all, that’s why you can even get a patentability opinion done. You may have an original, and patentable, idea but your competitors may have expert engineers and lawyers that can analyze your patent and actually learn from the details of your own patent how they can get around it!
However, during the patent pending period, the details of your invention are kept secret by the patent office. You are not only entitled, but required, to say “Patent Pending” or “Patent Applied For” on your product. This may scare away possible competitors, until they get a look at the actual patent and decide they can effectively design around it.
You may feel this isn’t very nice; that the system is wrong. However true that may be, it is in fact the way it works. This scenario plays out more commonly that you might think.
This has been only a short article on just one aspect of the patent process. Patenting a product is complicated. Even if you decide to proceed on your own, be sure to check out the rest of our site and request a free invention and patent kit!
