1. Is It Necessary to Patent Before Selling?
2. How to Sell Without a Patent

You might be asking yourself, "Should I patent my idea before selling?" The short answer is no. However, it may still be a good idea to obtain a patent to prevent any potential issues in the future.

Is It Necessary to Patent Before Selling?

It is not a requirement to patent a product or service pertaining to an invention before you can sell it. In fact, there are many services and products that are sold every day without being patented. In the United States, a patent gives a patent holder the right to prevent any other person, business, or legal entity from producing, advertising, importing, or selling the patent holder's invention within U.S. borders. So, while it is not a requirement to obtain a patent to sell your invention, it may be a good idea to do so because it can give you a competitive advantage over the competition.

However, having a patent does not grant permission to produce your invention. Patents cannot protect you if somebody else makes an infringement claim against you. For instance, say your invention is one that incorporates something already in existence, and you obtain a patent. If the person who owns the product or service that has been incorporated into your own sends a letter stating that your invention is an infringement on a patent he already holds, your patent will not provide a defense against these allegations.

This is because patents can be used in an offensive manner, specifically to prevent somebody else from infringing upon your invention. But they cannot be used in a defensive manner like keeping somebody from claiming your invention infringes on something they have already patented. There may be other defensive measures you can explore, however. For example, if the patent on the invention that your patented item incorporates is invalid, that is a defensible point.

If you ever find yourself facing an infringement claim, it's best to get help from an attorney with knowledge and experience pertaining to patent laws. To be sure your invention isn't in danger of infringing on somebody else's patent, you'll need to make sure you have either:

  • Clearance
  • Freedom to operate opinion

To keep somebody else from copying your product and selling it as his own, you'll need to obtain a patent. There is no requirement to hold a patent before you begin selling products or services associated with your invention, though. It is entirely possible to move forward without obtaining a patent and compete in your market. Keep in mind, however, that, without a patent, there is nothing preventing somebody else from copying your idea and selling it for himself.

How to Sell Without a Patent

Most inventors choose to obtain patents for their ideas once they've settled on a solid concept. While patents provide you with certain protective measures for your invention, the process involved in obtaining them can be intense and takes several years to work through. Patents issued by the United States Patent and Trademark Office provide inventors with legal protection against infringement. Once your invention has been patented, nobody is allowed to use your idea without your express permission. With this in mind, most companies won't purchase rights to an invention unless they can verify that it's patent protected and nobody else can make or sell the same thing.

Getting a patent for your invention can be a long, drawn-out process that is also quite expensive. There are ways, however, to sell your invention without holding a patent:

  • Apply for a provisional patent
  • Keep a detailed record of the steps you took to develop your invention
  • Approach companies in your industry that aren't already selling something similar and begin talking to them about licensing your invention
  • Make use of an intermediary company to help you make contacts and get exposure for your idea
  • Make contacts and network with fellow inventors
  • Make sure you're at local and national conventions that inventors are known to attend

Common tactics that other inventors use on a regular basis include:

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