That is the question I get most often. A client walks in, explains their new invention and then asks me whether they should try to patent the invention. Well, if time and money were no objects, the answer would be quite clear. “Yes” I would tell them all, “Why not?” Unfortunately, in the real world, time and money are considerations. More often than not, the question of whether to try to patent an invention is a business question than a legal question. You simply weigh the costs and benefits of patenting or not patenting and make a business decision based upon all of the available information.
A patent is merely a “safe” in which to store your valuables, your intellectual property. Whether you put the Hope diamond in your safe or a lump of coal is up to you. It depends on how good your invention is but, more importantly, how efficient and exhaustive your marketing efforts are. Researching the industry, tailoring your invention to that industry, getting the invention in front of the right people and delivering an effective presentation are all critical factors. Spending years spinning your wheels on the same marketing routes that get you nowhere or spending ten hours a year making calls to the right people are not going to get you a licensing deal. It takes time and efficiency (and a fair bit of luck) to turn your idea into gold. More often than not, overnight success takes years in the making.
The patent attorney’s job (or at least it should be) is to get you the broadest coverage patent for the least amount of money in the least amount of time. Patent attorneys are much more concerned with how can you patent your invention, than whether you should patent your invention. Use your patent attorney to find out:
If your invention has the potential for patentability:
1) New-not ever having been done before;
2) Useful-Not typically an issue; and
3) Not an obvious combination of existing products or methods
In addiction to being new, useful and non-obvious, the invention must fall into one of the following categories:
1) Process-Either real (assembly line) or virtual (one click online
shopping);
2) Machines- Either real (computer) or virtual (software-based machine);
3) Manufactured Products-bottle caps, hats, etc.;
4) Compositions of Matter-drugs, chemicals, etc.; or
5) Any improvements to the foregoing.
If your invention meets these criteria, the patent attorney will probably, and should probably, tell you to move forward in the patent process. The patent attorney, however, is telling you whether you can patent your invention. To find out whether you should patent your invention you need to different questions. Tomorrow. Should I patent my invention?
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