Do You Need a Patent: Everything You Need to Know
When asking “Do you need a patent,” remember that entrepreneurs and inventors should always patent their inventions in order to make them commercially viable. 7 min read
Do You Need a Patent?
When asking “Do you need a patent,” remember that entrepreneurs and inventors should always patent their inventions in order to make them commercially viable. If you want to enter a product onto the marketplace or license an idea, you need to ensure that your invention is protected by a patent. Legally, a patent is a “negative right” that gives an inventor the right to exclude others from claiming ownership of an invention.
Patent Your Product
Unprecedented and novel inventions should always be patented. Patents granted by the United States Patent and Trademark Office protect are enforceable throughout the United States. To gain protection in other countries, foreign patents can be applied for; however, many countries have relatively weak patent protections.
In the United States, there are three main types of patents: utility, design, and plant patents. Utility patents protect an invention’s function; design patents protect an invention’s aesthetic; and plant patents are granted to protect new botanical strains.
Utility patent applications typically cost between $5,000 and $10,000. Technologically complex inventions can cost more. The patent process can also cost more if the Patent Office decides to contest your claim. For most patents, the application process involves a back-and-forth between the inventor’s patent attorney and a patent examiner from the Patent Office.
Patents are not only costly, but they usually take several years to accomplish. However, once a full patent is granted, it will last for 20 years dating back to the time of filing. If a provisional patent was applied for, the protections will be effective from the date of the filing for the provisional patent.
Inventors should always carefully study the marketplace to make sure that their idea truly is unique. If an invention is too similar to something that already exists, the patent application could fail.
Do I Need a Patent to Sell My Product or Service?
Patents are not legally required before you sell your product or profit from your idea. There are many products and services sold in the United States that are not patent-protected. However, a patent is necessary if you want to prevent others from making marketing, selling, or importing your invention. Patents are thus optional, but they are a smart business tool that gives inventors a competitive edge in their marketplace.
Although patents provide a right to exclude others from using or claiming an invention, they will not protect an inventor from claims of infringement by others. Inventors should gain a “freedom to operate” opinion (FTO) from a patent attorney if they are similar products or ideas on the market already.
Mistakes Inventors Make With Inventions
There is no shortage of information online for new inventors to access. Some of it is very good, but many sources are questionable. Inventors should seek information about the patent process from qualified sources.
Sold the Invention
In the United States, inventors that sell an invention must file a patent application within 12 months of the sale. If more than 12 months pass and no patent application has been filed, the inventor forfeits their right to obtain a patent from the United States Patent Office.
Publicly Used the Invention
Public use of an invention creates problems similar to those that come up when there is a sale. Before using an invention publicly, a patent should be applied for, especially because in many countries there is no grace period.
Terrible Provisional Patent Applications
Provisional patent applications are invaluable when they are properly drafted, but they can be damaging when they are poorly done. Provisional patent applications are easy to file – all that is necessary is a cover sheet and a description of the invention. The Patent Office does not examine provisional patents when they come in.
Because they are so easy to get done, many discount vendors offer provisional patent application services for just a few hundred dollars. But inventors should beware these cheap options. A provisional patent needs an adequate description or the effective filing date of the provisional patent won’t count. This essentially renders the provisional patent worthless. If a provisional patent doesn’t prove that you had a complete idea, it offers no real protections.
No Professional Patent Search
Before deciding to patent, inventors should have a professional patent search conducted to confirm that there is nothing too similar already out there. Considering there are over 9,000,000 patents in the United States, and millions of other ideas that have been made public, almost any idea will require a thorough search.
Patent professionals know how the United States Patent and Trademark Office classifies inventions, how patent attorneys describe things, and how to conduct a thorough search. When inventors that lack expertise with patent searches try to do their own patent search, they risk missing a similar invention, which can have a devastating impact later on. And inventors should remember: just because a patent search doesn’t find anything does not mean there is nothing similar out there.
For many reasons, some products are patented but not available online for purchase. Inventors may have patented an idea, but then run out of money to execute a business. Just because a product cannot be found online does not mean that a patent does not exist.
How to Patent an Invention Idea
Ideas cannot be patented; only inventions can be patented. Your idea is the first crucial step towards gaining patent protection but to actually gain a patent the idea needs to be fleshed out. The idea needs to be described as a tangible thing. And it needs to be described in sufficient detail.
Going from a mere idea to an invention is a process that takes time. But when you have reached the point that you can fully describe the idea in terms of an actual product or method, then it can be patented.
A patentable-invention idea can be explained fully to others. The so-called “enablement” requirement for patents must be met. This means that others must be enabled to copy and use your invention based solely on your description of it. It isn’t necessary to describe every little detail, but it should be sufficient to allow others to replicate and carry out the invention if they wanted to. Drawings and illustrations are almost always a necessary feature of a sufficient description. A prototype is optional.
Do You Have a New Invention Idea?
After making sure your invention is a new idea by conducting a thorough patent search, it is also important to protect your invention so that others do not claim it. Too often, inventors tell others about their idea before filing a patent application, and this leads to multiple parties claiming ownership of an invention idea.
In other cases, companies research and development programs may coincidentally be working on a similar idea. Therefore, it is important to get a provisional patent as soon as possible. It is also important not to discuss your idea or disclose your idea to any companies without them first signing a non-disclosure agreement. Without such an agreement, a company could legally use and profit from your idea without your permission, and even patent the idea itself if you haven’t already done so.
Protecting Your Invention When You Need Help
Protect your invention with confidentiality and non-disclosure agreements. A confidentiality or non-disclosure agreement prohibits a party receiving information from disclosing that information to others.
Many inventors reach out to family, friends, and business associates to get help with the patent process. Getting help can be a good idea, but remember to protect your invention with a confidentiality or non-disclosure agreement. Even if you trust the person you are confiding in, once you disclose your invention to others, the invention is no longer considered a “trade secret” unless you have a confidentiality agreement.
Reasons to Patent Your Idea
These are the most common reasons that people patent their ideas:
- To keep others from stealing it
- To raise the value of the idea so that it can be licensed
- To prevent competitors from using it
- To establish a specific market share
The Fear That Others Will Steal It
A patent is the only way to prevent others from taking your idea. Because it is the only legal mechanism available, patents are essential when it comes to keeping others from stealing your idea.
To Generate Licensing Revenue (Royalties)
Many inventors don’t have the capital or infrastructure to produce and sell their invention themselves. From a business standpoint, it is often much more profitable to license the idea out to a company that will pay the inventor royalties in return. In these arrangements, the inventor retains ownership, but the company has the right to produce and sell the invention.
To Prevent or Reduce Competition
If your goal is to sell your invention, preventing competitors from selling the same or similar products is crucial.
To Maintain or Acquire Market Share
Having a patent on a new invention can boost you over the competition and give you a solid market share.
To Enhance Company Valuation
Patents protect the value of an invention. When a business owns patented technology, its value is greater.
For Business Credibility or Marketing
Not only does patenting an invention have intrinsic value to the patent holder, but patents can also be used as effective marketing tools. Potential customers and investors are drawn to patented ideas because they are unique.
For Personal Credibility or Vanity
Some inventors just want the validation of having an idea patented. It does feel good to have a patented idea. While this might not be enough to justify the cost of patent by itself, it is another reason to get a patent.
For the Experience
Going through the patent process is an educational experience. For inventors that are likely to go through the process more than once, the experience of going through the process the first time is valuable.
To Avoid Infringing Someone Else’s Patent
As previously mentioned, a patent does not protect an inventor from claims of infringement. Having a patent is no guarantee that an idea is not infringing on some earlier patent. Therefore, inventors shouldn’t think that getting a patent automatically means they are safe from claims of infringement.
It is worth it to carefully consider why getting a patent is the right choice for your invention. When you have carefully thought through the reasons why you want to get a patent, you can make an educated decision about whether a patent is worth the cost. Every inventor’s situation is different.
If you need help filing a patent application, you can post your legal need on the UpCounsel Marketplace. The attorneys on UpCounsel are experienced in their legal fields and ready to help. UpCounsel accepts only the top 5 percent of lawyers that apply to its site.