SHOULD I PATENT MY INVENTION?

As a patent attorney, many inventors often ask me if they should patent their idea or invention. The answer to that question – and yes, here it comes – is IT DEPENDS. It depends because the goals and objectives of every inventor or business are different. The goal of this article is to help businesses and inventors identify what to consider when deciding if to patent an invention.

What Is A Patent?

One must understand what a patent is to understand what to consider when deciding if to patent an invention. A patent is a legal document that gives the owner of the patent the right to exclude others from making, using or selling an invention for a certain period of time. While patents can be important for other reasons, excluding others is one of the most important reasons. Excluding others allows the patent owner to prevent other businesses or individuals from taking advantage of the invention. In the case of a utility patent, which protects the functional aspects of an invention, a patent owner can generally exclude others for twenty (20) years. Excluding others from using an invention is a significant competitive advantage over others in the marketplace.

You Do Not Need A Patent To Sell A Product

A common patent law misconception is that having a patent protects the patent owner from infringing on another’s patent. This mistaken belief stems from a misunderstanding of the role of the United States Patent and Trademark Office (“USPTO”) and the legal principles of patentability and patent infringement. The USPTO examines a patent only to determine the patentability of an invention and never considers infringement. Even if the USPTO grants a patent on an invention, the patent owner must still be aware that selling that invention may constitute patent infringement of another patent. Before selling a product many businesses have an experienced patent attorney conduct a prior art search to determine what patents exist in the field of the product.  This will help determine if selling the product would be infringing on another patent.

Consider What You Intend To Achieve By Having A Patent

Do you intend to manufacture and sell the patented product yourself? Do you intend to grant a license to other individuals and companies to have them sell your patented product in exchange for a fee? Do you only want to have a patent to ward off some of your competitors? Or, do you only want to have a patent to hang on your wall like a piece of art (which can be an achievement by itself)? How you answer these questions will help a patent attorney determine the type of patent to file or the best course of action to take. Ultimately, the goal is to determine whether the patent you may be able to obtain is worth the investment.

Consider What Type Of Protection The Invention Needs

There are different types of patents and patent applications. These include a plant patent, a provisional patent application, a design patent and a utility patent. Each type of application provides different types of protection and have different types of costs and fees associated with it. For example, a design patent only protects the ornamental aspects of a design. A utility patent, on the other hand, protects the functional features of an invention. A provisional patent application can be used to protect functional features of an invention, can be less expensive to file, but provisional applications have some specific issues that a business should be aware of before filing. For more information about provisional applications, read the article “When and Why is a Provisional Patent Application Useful?”. In most cases, the type of patent to be filed will depend on the invention and a business’s goals and budget.

Consider The Need For The Invention.

Is there a market for your product? How has the market survived without using your product or service? What percentage of the market must you capture to make selling your product commercially beneficial?  The answers to these questions will assist you in deciding if pursuing patent protection and selling your invention makes business sense.

Consider How Long The Product Will Be Sold Or Marketed

In some cases, the shelf life or marketability of a product may be less than the amount of time that it would take to acquire a utility patent on the invention.  In such some cases, a business may look to a provisional patent application, a design patent, a trademark or other forms of intellectual property for protection.

In many cases, obtaining a patent can be the best decision for a business or inventor.  In those cases, a patent is used as a competitive advantage over competitors. Doing some research and answering some of the questions raised in this article will help you make an informed business decision.  While the questions raised above are not meant to be an exhaustive list of things to consider when deciding if to pursue patent protection, it should help you begin thinking about what you should be thinking about before you pursue patent protection for your invention.

The attorneys at The Plus IP Firm have helped numerous businesses and inventors protect their ideas, concepts and creations with patents, trademarks and copyrights.  The attorneys at The Plus IP Firm have helped businesses in Fort Lauderdale and other cities throughout Broward County, in West Palm Beach and other cities throughout Palm Beach County, and in Naples and other cities in Collier County.  To discuss your options, click here to schedule a free telephone conference with one of our experienced patent attorneys.