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Should I Patent My Invention?

The Number One Question
“Should I Patent My Invention?” is typically the first question I get from new inventors. Unfortunately, even the best patent lawyer in the world cannot answer this question for them. The question is a business question, not a legal question. It is not a question your patent lawyer should be answering. Instead, your patent lawyer should answer questions that will allow you to determine whether or not you need a patent. Over the past twenty years, I have seen inventions I initially thought were frivolous, that went on to earn millions of dollars. I have also seen inventions I would have purchased for myself, that failed to earn even enough money to pay for the patent. So how can you tell the difference?

Ask Better Questions
Instead of asking whether you should get a patent, ask:

What a patent can do for me?
How much does it cost?
What are its advantages?
What are its limitations?

Examine how the answers fit with your business goals and capabilities? A patent is basically a safe deposit box. Building the safe deposit box is the patent lawyer’s job. Increasing the value of what you put in the safe deposit box valuable is your job. Whether you put the Hope Diamond or a lump of coal in the safe deposit box depends upon your ability to market your invention. The first thing to look at is whether you have the ability to translate a patented invention into cash.

Sales are Key
If you are in the business of selling widgets, and you just invented a high efficiency, low-cost widget that will increase your profits $100,000/year, you likely need a patent. If you have no sales or manufacturing experience, and you believe manufacturers will beat a path to your door, you might want to confirm that belief before spending thousands of dollars on a patent. If you are in the business of selling widgets and your new widget looks to net you $20,000 over the life of the invention, a patent may not be the way to go. Know the market and have a firm idea of how you will intend to make money with your invention. Will you sell it yourself, or license it to a distributor? Do you have a distribution network already in place? Do you have a brother-in-law who works for a widget distributorship and who told you they are looking to expand their product line? A patent with no sales is just a very expensive piece of paper. Get hard numbers, costs and timelines on sales, marketing and distribution before deciding whether to patent your invention.

All Patents are Not Created Equal
Once you decide to proceed with a patent, you have to decide what kind of patent you want, a good patent or a bad patent. The quality of your patent depends upon three things: the quality of your patent lawyer, the types of similar devices available and the aggressiveness of your patent examiner. You cannot do much about the types of similar devices available or the patent examiner you get, but you can choose your patent lawyer. Like patents, patent lawyers are not all created equal. If you put one hundred patent attorneys in a room with an invention and told them to draft a patent on it, no two of the patents would be the same, some would be better and some would be worse. Bad patents are cheap and quick. They are so narrow and easy to get around, the Patent Office rarely puts up much of a fight granting you a monopoly over a very tiny market. Good patents are expensive, and take longer to obtain. The Patent Office is very concerned about granting large monopolies and vets them quite thoroughly. That is not to say the best patents are the most expensive. While a $2,000 patent is nearly always worse than an $80,000 patent, patents in the $9,000 range have been sufficient in scope to protect eight figure monopolies.

Questions For Your Patent Lawyer
While there is no way to determine for sure if you are selecting the right patent lawyer, there are several questions you can ask to separate the wheat from the chaff:

1. How long has the patent lawyer been drafting patents? Ten years or more is typically more than enough time to learn the ropes.
2. How many patents has the patent lawyer obtained? You can go to Google Patents and plug in the patent lawyer’s name. While quality is more important than quantity, it is difficult for the layperson to determine the quality of a patent. One hundred or more patents under the patent lawyer’s belt should be more than sufficient.
3. Will the patent lawyer you are meeting be the one drafting the patent? Many times firms will have you meet with a senior patent attorney before pushing you off on a much less experienced patent attorney. You do not want someone “cutting their teeth” on your patent.
4. What is the patent lawyer’s Martindale Hubbell rating? An “AV” rating indicates that other lawyers respect the patent lawyer’s work.
5. Do your friends and families have any recommendations? If they do not know any patent lawyers, ask a lawyer you respect who he or she would recommend as a patent lawyer.
6. Does the patent lawyer offer a free consultation? This will give you an idea of how well the patent lawyer understands your goals and answers your questions.
7. Has the patent lawyer written any books? A book on the subject, written by the patent lawyer, is an inexpensive way to get an idea of the patent lawyer’s knowledge and writing ability.
8. How adept is the patent lawyer at adopting new technology? If your patent lawyer is in the dark ages when it comes to technology, there is a good chance that patent lawyer is not up to speed on the most recent developments in the law.
9. What does a Google search of your patent lawyer reveal? Does it return a number of well-written articles, or a bunch of paid placements?
10. How much experience does the patent lawyer have litigating patent cases? If the patent lawyer has successfully litigated patent cases, he or she will be better able to draft your patent with an eye toward defending it in court.

Just a little bit of research before you choose a patent lawyer, can save you a lot of time, money and headaches down the road.

Brett Trout

Posted in Patent Law. Tagged with , .