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Patent It and They Will Come (Maybe)


Should I Get a Patent?
As a patent attorney, I get that question a lot. Unlike a lot of patent attorneys however, my first answer is typically not an emphatic “Yes.” A good patent is like a safety deposit box. Very valuable, assuming you have something valuable to protect. A patent is not going to sell your invention for you. The only thing a patent can do is to stop other people from selling your invention. If no one is interested in buying your invention, no one else is interested in selling it, making your patent rather useless.

If Not Me, Who?

I long ago gave up trying to guess whether a new invention was going to make money. I have had clients walk into my office, with “can’t miss” inventions, that missed by a rather wide margin. On the other hand, one of the most successful, albeit wacky, inventions I have ever had the pleasure to patent was invented by a client I nearly politely shuffled out of my office in my own misguided attempt to keep him from wasting his money. What changed my mind was the inventor’s knowledge of marketing and his vast array of industry contacts, things the “can’t miss” inventors never bothered to consider.

Will It Sell?
Now, much wiser (and wizened for that matter) when a client asks me if they should get a patent on an invention, I typically respond with another question. “What kind of sales do you expect, and how do anticipate getting those sales?” If the inventor details prior successful performance in a similar market, filing a patent is probably a pretty good idea. If the inventor does not have the first clue about marketing, but figures he or she will “patent it and they will come” I encourage them to prepare a business plan detailing proposed marketing efforts and anticipated sales. In between those two extremes, my advice still leans in those directions, albeit to a lesser degree.

How Do I Get a Patent?

Obtaining a patent involves filing a patent application which describes the parameters of your invention. Even for a skilled patent attorney, drafting a patent application is a very time consuming process, often taking several weeks to complete. Once the application is completed, it is filed with the United States Patent and Trademark Office (USPTO) Two to three years later (yep you read that right), the USPTO examines the patent against all of the other seven million patents in the USPTO (well maybe not all). If your patent application is very broad (which it should be), it is very likely that the USPTO will reject most, if not all of the patent protection you are claiming. Assuming you indeed have something novel, you fight back and forth with the USPTO, possibly for years until you either give up, or the USPTO grants you a patent.

Can I Patent It Myself?
While it is theoretically possible to obtain a patent on your own, even the USPTO recommends obtaining the learned counsel of an experienced patent attorney. Patent attorney are attorneys with a science background, who have passed a separate “Patent Bar” exam, demonstrating their knowledge and skills in the patent drafting arena. Not all patent attorneys are created alike, just like all patents are not created alike. While you often get what you pay for, there are some inexpensive patent attorneys who draft very good patents and expensive patent attorneys who draft very bad patents. To find a good patent attorney, get a recommendation from someone who has actually obtained a patent with the attorney. The problem with drafting your patent yourself or hiring a bad patent attorney, is that by the time you realize you have made a grave mistake, the most valuable aspect of your invention may be irretrievably cast into the public domain.

Its All About The Marketing
It’s much better to have a great marketing plan and a bad invention, than a great invention and a terrible marketing plan. Sound strange coming from someone who earns a living drafting patents and openly professes the inability to market inventions? Well that is the way it is. What about those invention promotion companies? I have yet to run across one that is not a scam or, at the very least extraordinarily ineffectual at parlaying an invention into pictures of dead presidents. If you believe in your invention, but know you are not a marketer, team up with someone who is. Better yet, find an investor with a strong marketing background, preferably with experience marketing your type of product. If you are lousy at marketing, at the very least, team up with someone who has access to marketers.

That Being Said
Patents can be quite valuable. Several are valued at over $1 billion apiece. Also, patents can be marketing tools themselves. Many advertisements tout the patented nature of the product as one of its most impressive features. Patents can be the source of revenue streams, generating millions of dollars in licensing fees from eager licensees. Patents also impress potential investors. Many investors require patent protection be in the works before they will even talk to you. Patents can do things money can’t. Good patents can carve out a broad swath of exclusive sales territory and may even “buy” your way out of a potentially crippling cross-infringement suit by your closest competitor. Patents can be some of the most worthless or valuable assets on the planet. Compiling an effective marketing strategy before diving into the patent process is often the difference between whether the “safe” your patent attorney constructs for you contains a lump of coal or the Hope diamond.


Brett Trout

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