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Do I Need a Patent?

What is a Patent?
A patent is a legal document which allows you to stop other people from making using or selling your invention without paying you a royalty.

What Can I Patent?
While there are special types of patents offering limited protection, such as plant patents and design patents, when people speak of patents, they are typically referring to utility patents. Utility patent protection is available for machines, compositions of matter and methods tied to, or transforming, matter, as well improvements upon any of the foregoing. Patents can not protect ideas, obvious combinations of pre-existing devices, illegal or immoral matter, pure research, or anything that is simply a novelty or curiosity.

How Valuable Are Patents?
The value of a patent depends upon several factors: how valuable is the underlying invention, what similar products are already out there, how skillful was your patent attorney in drafting and prosecuting the patent and how well the inventor markets the invention. A patent is really like a safe deposit box for keeping valuables. Patent can not make inventions better and being awarded a patent, even a broad patent, does not even mean that an invention is valuable. There are thousands of patents on inventions that never enjoyed commercial success. The value of a patent depends upon whether the invention will sell. If the invention will sell like hotcakes at a profitable price, a patent would be very valuable. The fact that the patent prevents competitors from entering the market and driving down the price on a hot selling item, means monopoly profits and/or lucrative licensing agreements for the patent owner.

How Long Does a Patent Last?
Assuming all of the governmental maintenance fees are paid in a timely manner, patents expire 20 years from the date the application for patent was filed. Between the time the application is filed and the date the patent is issued, the patent applicant has no right to stop others from making using or selling the invention.

What Does a Patent Look Like?
Google Patent Search has millions of patents anyone can search and review. While most people gravitate to the detailed specification and drawings in a patent, the real heart of the patent is the claims. Each claim is a one-sentence description of the invention. A great claim is narrow enough to differentiate the invention over all pre-existing devices, but broad enough to cover obvious modifications competitors might try to circumvent the patent.

What Makes a Great Patent?
No two patent attorneys are going to draft the same patent covering a particular invention. The breadth of a patent is closely correlated with the skill and knowledge of the patent attorney drafting it. Obtaining a narrow patent is a relatively easy matter, which most laypeople could accomplish with a little instruction. Given the ease with which a competitor can design around a narrow patent, event the United States Patent and Trademark Office does not recommend tackling a patent without the aid of a patent attorney.

A skillful patent attorney is not the only component of a great patent. A great patent often requires more time and money than a bad patent. The novelty of the invention also plays a hand in the breadth of the patent. It is not difficult to gain broad patent protection on a truly pioneering invention. By the same token, it is hard to gain more than minimal patent protection on an incremental improvement over the way things were done before. All of these factors play into the value of a patent.

The Infringing Patent
It surprises most people to learn a patent does not give you the right to DO anything, only the right to prevent others from doing something. The Patent Office does not care if your invention infringes an existing patent as long as your invention is an improvement over that other invention. Why would you want a patent on an invention which infringed someone else’s patent? Well, if an inventor were to invent a chair and receive a patent thereon, a subsequent inventor could file and obtain a patent on a rocking chair. Neither the first patent owner nor the second patent owner could make the rocking chair without infringing the other’s patent. However, the parties could negotiate a cross-license where both parties pay each other a royalty in exchange for being allowed to manufacture the improved device.

Pursuing Infringers
If someone infringes a patent, a court may order them to stop infringing (injunction) and/or order them to pay damages. If the judge or jury finds the infringement was intentional, the court may order the infringer to pay triple damages and attorney fees (which alone are often $1 Million or more).

Starting the Process
The Patent Office (USPTO) is a good place to start your quest for a patent. The USPTO website has a lot of information about patents and the application process. Although it is difficult to determine definitively from the Patent Office database or Google Patent Search whether your idea is patented, you may get lucky, or unlucky as the case may be, and stumble upon your idea in another patent. If your searches do not turn up anything similar, you may wish to enlist a patent attorney to do a more comprehensive search on your behalf. Even the best patent search however is not exhaustive. Many patents are not made public until after they have been on file for eighteen months.

If the patent search goes well, you may wish to have the patent attorney prepare and file a patent application on your behalf. Although the process is long and costly, if the invention is a winner, a patent can be the difference between whether you or someone else capitalizes on your idea.

Brett Trout

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