Product Design & Development
We get a lot of inquiries about patents. The following Q&A is not legal advice but rather basic information about US utility patents. It is directed at inventors and small business owners. Large tech firms have lawyers on staff filing as many patent applications as possible.Do I have to get a patent?
No, you do not have to get a patent. You can design and manufacture your product and start selling it. Once your product is in the public domain, no one can come along and get a patent on it. There are people and companies the world over getting rich selling un-patented products.
I filed a provisional patent application; did that make sense?
It couldn't hurt but it could have been a waste of time and money. In the best case scenario, this secured you a priority date 1 year earlier than otherwise. After filing the provisional, you have 1 year to file the real nonprovisional application. If you can't get the design detailed and documented in a good application in 1 year, you lose the priority date.
Also, if you apply for design A and end up doing design B, the provisional is worthless. So doing the patent search and a certain amount of design work first (and some market research) makes sense. Then apply for the real patent.
Here is a provisional patent article from IEEE Spectrum.
Here's a scenario where a provisional patent makes sense: Let's say you have moved ahead with design & manufacturing and are starting to sell and evaluate the market for your product. You don't want to spend money on a patent because you don't know if anyone wants your product. File the provisional and use the 1 year to evaluate the market for your product. If your product won't sell, you didn't waste money applying for a real patent.
Is my idea patentable?
The three key traits of a patentable invention are usefulness, novelty and nonobviousness.
Usefulness: your invention must have a usage that is real and tangible. A theory cannot be patented. Also, a natural process such as gravity or a naturally occurring organism cannot be patented.
Novelty: your invention must be new; it can't be out there already. This is why a patent search is important.
Nonobviousness: This is the tricky one. If someone "skilled in the art" can take a few different features of existing designs and put them together to form your idea, you won't get a patent. Your idea needs to be clever; inventive; nonobvious.
Should I do a patent search?
Yes. Even if you decide not to file for a patent this effort will be beneficial. First do your own search then pay a specialist to prepare a report. We can recommend someone. A good report can really open your eyes to what your product should and shouldn't be.
Search Google Patents or the USPTO.
Should I file a patent application?
Let's say your idea is great, there's a real market for it, and you're selling like crazy. Now other manufactures start copying your idea and entering the market. This will happen whether you have a patent or not.
If you don't have a patent you will ramp up your sales effort, improve your product, better your customer service and maybe lower your prices: all to compete with the new sellers.
If you have a patent you will get a lawyer and sue these competitors who are infringing on your patent. You'll ask them to cease and desist or to pay you a fee or royalty. Maybe you'll end up in court.
Both of the above cost time and money. The question is which is more profitable for you - and which would you rather do.
Other things to consider: The patent process will take about 3 years. Only 5% of patents are every monetized. There are patent applications in front of you that you don't know about.
This last issue has to do with the 18 months immediately following an application. During this period the USPTO does not reveal an application to the public. The application is assigned a priority date but will not show up in your patent search. There are approximately 750,000 patents in this time window. So there is a risk that your idea has been thought of and an application is one day ahead of you. This could result in your application being rejected because your idea is not novel.
Consider also that if you don't apply for a patent you don't have to reveal anything. Perhaps your design or manufacturing process can remain a trade secret and thereby protect you from competitors.
Most inventors think of a patent as a way to prevent someone from copying their idea. This is true but it is also a tool to generate income. A patent can be sold, licensed or used in court to obtain damages. If your business goals are along these lines, consider hiring a patent lawyer to prepare your application.
more to come....
How much and how long will it take to get my patent?
Can I say "patent pending"?
Where can I learn more?