NEED A PATENT?

If you do pursue a patent, it’s not going to be free! So it pays to first carefully consider…

NEED A PATENT?

If you do pursue a patent, it’s not going to be free! So it pays to first carefully consider and understand the real reasons you would do it. As a business decision, the economic reasons for pursuing a patent are really the most critical to consider, because they allow you to judge dollars against dollars. Look at the potential monetary benefit, and crunch the numbers that matter: “Will this add enough value to my business to justify the cost?” “Will this net enough cash/stock/credibility when I sell or license it?” “If I can’t sell or license it, am I willing to put in even more money to produce and sell it myself?” Do the math. Then decide. And remember to re-evaluate as you go along. Perhaps only part of the idea turns out to be patentable. Is it the critical part, or could someone produce the product differently without that part and avoid licensing or buying your rights?

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WHY FILE EARLY?

Filing an application early is an important step to preserve your priority toward getting a patent.

WHY FILE EARLY?

Filing an application early is an important step to preserve your priority toward getting a patent. Even if the product will be developed further, your early application filing will establish your rights in the core concepts and structure to the extent possible.

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PROVISIONAL FIRST?

A provisional patent application must be well written to effectively establish priority! […]

PROVISIONAL FIRST?

A provisional patent application must be well written to effectively establish priority! The main purpose of a provisional patent is to get a filing date that is earlier than the one you might get if you waited until all your ducks were in a row to file a full utility application. Getting an earlier filing date could be very important as far as protecting your rights and feeling “safe” to disclose your idea to potential partners or investors. But be warned: If the main features you want to protect aren’t adequately described in the provisional, you might find that someone else who came along later but with a better description, actually beat you to the patent!

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WHAT'S IT GOING TO COST?

The fees charged by the USPTO are flat fees that vary depending on the size of the organization. […]

WHAT’S IT GOING TO COST?

The fees charged by the USPTO are flat fees that vary depending on the size of the organization. An independent inventor doesn’t pay as much as a huge corporation. The fees your attorney charges depend on the attorney’s rates and payment options (hourly, fixed fees for certain types of applications or filings, additional fees for more than X number of drawings). Be sure you understand the fees involved before you start the process.

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THE PATH TO MONETIZATION

You came up with a great idea and it’s patentable: now what? […]

THE PATH TO MONETIZATION

You came up with a great idea and it’s patentable: now what? Having a plan in writing that provides one or more specific paths to monetization puts you way ahead of most people who only consider patent protection. It also gives you a leg up on anyone with a similar idea but no plan—even if the other person already has a patent. After all, ideas don’t just magically generate money!

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WHAT IS IT?

The important question to answer at an early stage, to help rule out unpatentable inventions…

WHAT IS IT?

The important question to answer at an early stage, to help rule out unpatentable inventions, is: could anyone provide an enabling disclosure for this invention? Knowing whether your idea can be adequately described to point out the operation of its unique feature(s) is crucial in preparing a patent application. Illustrations can be helpful, and they do become part of your patent when it is approved. If you can’t describe its operation clearly, it’s not patentable.

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HOW MUCH DETAIL IS NEEDED?

Just mentioning a feature in your patent application won’t necessarily limit you to that feature!

HOW MUCH DETAIL IS NEEDED?

Just mentioning a feature in your patent application won’t necessarily limit you to that feature! The features that you describe in detail in the specification section of the application can—and should—include as much detail as necessary for anyone with knowledge of the field to copy your idea. It’s required under the law. Significant detail can be provided here without limiting the scope of what your patent protects.
It’s the claims section where you’ll want to keep the description as broad as possible. That’s where the scope of your rights are spelled out. Limiting the details in the claims gives you broader protection. Having broad claims doesn’t mean someone won’t try to copy your idea. It means that, if someone does try, it will be much more difficult for them to do so without infringing your patent.

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SERIAL NUMBER: YES OR NO?

People commonly ask, “When I mark my product as ‘Patent Pending,’ should I include the serial number…

SERIAL NUMBER: YES OR NO?

People commonly ask, “When I mark my product as ‘Patent Pending,’ should I include the serial number of my patent application?” The answer is no. It’s not required that you mark your product with the application serial number. Just the phrase “Patent Pending” will do and is preferable. When competitors see “Patent Pending” on a product, they might wonder (but can’t usually find out) when your application was filed. However, because serial numbers are assigned sequentially, if you were to tell others your serial number, they would be able to estimate when you filed your application. Thus, telling others the serial number of your application gives up some of the “mystique” and advantage that normally surrounds your patent pending status.
So don’t mark your product with the serial number, and others won’t know how long ago you filed! Note that once the patent is approved and issued, it is then appropriate to mark it with the patent number. The difference is, when you actually have a patent, it will then already be public and is already readily searchable—so they can find out, regardless of whether you gave them your patent number.

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BE DESCRIPTIVE

COMMUNICATION. It’s fundamental to getting anywhere with your idea. […]

BE DESCRIPTIVE

COMMUNICATION. It’s fundamental to getting anywhere with your idea. Whom you discuss it with, how you describe it—or, more precisely, how well you describe it. These are the most critical elements of getting a good patent, getting investors and developing your idea for the marketplace, selling or licensing your rights to the idea. In short, communication is the key to EVERYTHING!

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PATENT PROSECUTOR VS. LITIGATOR

You—yes, YOU!—may find yourself accused of patent infringement, especially if you…

PATENT PROSECUTOR VS. LITIGATOR

You—yes, YOU!—may find yourself accused of patent infringement, especially if you manufacture, distribute, or sell ANYTHING in the United States. It’s important to know that the patent attorney who drafts patent applications is called a “patent prosecutor.” The attorney who represents you in an infringement case (on either side) is called a “patent litigator.” Oftentimes, these are not the same attorney. Because each type of lawyering requires a different skill set, many specialize in one or the other. If you’re an inventor or entrepreneur, it’s a good idea to know at least one of each!

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IS IT REALLY NEW?

A lot of people pass on exploring the patentability of their idea because they believe—without actually…

IS IT REALLY NEW?

A lot of people pass on exploring the patentability of their idea because they believe—without actually investigating it—that someone else must have already gotten a patent on it. Don’t assume! If you’ve come up with something that you think is really useful, look around. Check the marketplace. Search Google’s patent database. After this cursory investigation, if you don’t find anything exactly like you idea, and if you believe your idea solves the problem better than anything you found, it may be well worth it to have a patent evaluation done by a professional. You could be onto something big!

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LOSING THE RIGHT TO PATENT

If you are thinking about disclosing your idea publicly before your application is filed, DON’T—especially if…

LOSING THE RIGHT TO PATENT

If you are thinking about disclosing your idea publicly before your application is filed, DON’T—especially if you might seek patent protection in other countries. There’s a limited grace period allowed between public disclosure and filing your application in the U.S., but may countries have none. You disclose, you LOSE!

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FOCUS ON THE GOAL

Work with your patent attorney to keep your project focused. […]

FOCUS ON THE GOAL

Work with your patent attorney to keep your project focused. It’s great to have questions. It’s better to have answers when your attorney has questions. Stay organized. Respond promptly when your attorney asks for information. Keep current with promised payments so that your attorney’s attention stays focused on completing your work on schedule.

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IDEA DEVELOPMENT

Your idea, in and of itself, can’t be monetized! […]

IDEA DEVELOPMENT

Your idea, in and of itself, can’t be monetized! What can create an income stream for you are the rights to your idea—whether you or someone else actually brings it to market. And nobody, including you, is served by wasting money on an idea that isn’t functional, marketable, and manufacturable. If YOU want to make money with it, it helps tremendously if it’s patentable. Otherwise, anyone could bring it to market and you’ll be out in the cold!

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ALTERNATIVE PROTECTIONS

If you decide to manufacture and/or market your invention yourself, it’s very likely that you’ll also…

ALTERNATIVE PROTECTIONS

If you decide to manufacture and/or market your invention yourself, it’s very likely that you’ll also need to protect at least one logo, trademark, slogan, package design—and possibly even a “trade secret.” Many aspects of your business that are not patentable subject matter can—and likely should—be protected by other forms of intellectual property (IP) protection. Make sure you discuss the other aspects of your business with your patent attorney. While he or she may not handle other forms of protection, expert guidance can be helpful for pointing you in the right direction.

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NEED A PATENT?

If you do pursue a patent, it’s not going to be free! So it pays to first carefully consider and understand the real reasons you would do it. As a business decision, the economic reasons for pursuing a patent are really the most critical to consider, because they allow you to judge dollars against dollars. Look at the potential monetary benefit, and crunch the numbers that matter: “Will this add enough value to my business to justify the cost?” “Will this net enough cash/stock/credibility when I sell or license it?” “If I can’t sell or license it, am I willing to put in even more money to produce and sell it myself?” Do the math. Then decide. And remember to re-evaluate as you go along. Perhaps only part of the idea turns out to be patentable. Is it the critical part, or could someone produce the product differently without that part and avoid licensing or buying your rights?

© Richard Goldstein 2016

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