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Patent Catch-22

I want sell my invention to get a lot of money, but I can not sell my invention until I get a patent, but I can not get a patent until I get a lot of money, but I can not get a lot of money until I sell my invention . . .

As a patent attorney, I go through this thought process with clients all the time. Trust me. If I had a simple solution, I would be the first guy on the block capitalizing on my insight. It is not that there is no solution, it is just “eat less and exercise” is not something everyone wants to hear. Lets go through some of the patent funding options:

1) Get your patent lawyer to draft the application for free and then share in the profits when the invention takes off. This sounds great, but is rarely feasible. To make this work, the invention has to be so incredible that even a patent lawyer could market it. You would likely be talking the top 5% of inventions. If it is that great, funding would likely be easier to find elsewhere on better terms.

2) Pay for the patent yourself. This is a fine option if you have $8500 burning a hole in your pocket, but it still does not solve the problem of how to make that money back.

3) Borrow the money. Savvy investors are likely going to ask that if it is such a great idea, why are you not selling your house to invest in it. If you are not interested, why should they be.

4) Pay an invention promotion company to do all of the heavy lifting. The only heavy lifting this strategy will likely avoid is that it will make your wallet much easier to carry from place to place.

5) File a provisional patent now and file a full patent after you start making money. The problem with provisional patents is that you only get protection for what you include in the application. Even as a patent lawyer it is difficult for me to guess what should be in the patent without drafting the claims. If I have to draft the claims, I might as well file a regular patent, because the cost savings have evaporated.

6) Make money selling the invention and use that money to pay for the patent. This is a very good idea with a few caveats. First, you will lose most of your foreign patent rights by selling the invention before filing for a patent. Second, once you offer it for sale, you have to get a patent on file within twelve months or the invention goes into the public domain.

7) Utilize the Small Business Administration, the Iowa Department of Economic Development, a trusted business advisor or, even better, contact a Business Accelerator to get a business plan put together that includes when a patent might be in order.

What is the difference between the first six options and the last one? The first difference is that the last option is going to involve some hard work, some ownership of the business decisions you will have to make and a high probability that you will realize your dream is not viable from a business perspective. The second difference is that the last option is the only one I can strongly recommend in good conscience. It will more likely than not result in me losing a patent I could otherwise have gotten paid for, but I will sleep better at night. Without a strong background in business, selecting one of the first six options is really just investing $8500 in lottery tickets.

If you are really interested in getting a patent, you have to be willing to do what it takes. Generate a business plan. Determine if the invention is viable and make the hard decisions that have to be made. You may decide to get a patent and you may not. The key is that you will have made a sound business decision, rather than an impulsive mistake.

Brett Trout

Posted in Patent Law. Tagged with , , .