Over seventeen years of drafting patents I have run across a lot of misconceptions about patents. Unfortunately, I sometimes hear them from would-be clients, crushed to learn their misunderstanding has cost them the chance to patent their inventions. Patent law is complex and constantly changing. Staying on top of the latest information is a full time job, even for a patent attorney. While it would be impossible to to cover every misconception, listed below are the five I hear on a fairly regular basis:
5) All Patents Are Created Equal
A patent is not a form you fill out. It is a detailed analysis of the metes and bounds of a particular invention. Given the nature of patents and the unique backgrounds and skill sets of different patent attorneys, no two patent attorneys would ever draft the same patent. Cheap, narrow patents are relatively easy to obtain; broad patents are more difficult and more expensive to pursue.
The problem with narrow patents is that they are relatively easy to “design around.” A few minor changes and your competitors have a competitive, non-infringing product. While broad patents are difficult to design around, they are not easy to get. Broad patents require both a truly ground-breaking invention and a skilled patent attorney who understands the technology and is capable of translating the invention onto paper. Whether you pay $3,000 or $50,000 for your patent, you usually get what you pay for. The key is determining how much protection your invention requires.
4) Mailing Your Idea To Yourself Protects Your Rights
Sometimes called a “Poor Man’s Patent,” a sealed, postmarked letter to yourself, detailing your invention provides nothing more than a false sense of security. It is relatively easy for anyone to mail an unsealed letter to themselves. Five or six years later, after a new product hits the market, the sender drafts up a description of the new invention, places it in the empty postmarked envelope and claims prior inventorship. While there are better ways to document something you invented, filing a patent is the only way to preserve your rights.
3) A Provisional Patent Preserves Your Rights Until You Can Afford a Patent Lawyer
A provisional patent is a patent without claims. Claims are by far the most complex and important part of any patent. As provisional patents do not require claims, almost anyone can draft a provisional application sufficient to meet the minimum criteria set for them by the United States Patent and Trademark Office (USPTO).
The misconception is that you can file a provisional patent to preserve your rights, then file a full non-provisional patent later. The problem is that a provisional patent only protects what is detailed in the provisional patent. Without drafting claims, it is difficult to know what needs to be included in the provisional application. One inadvertent oversight or omission can make your invention an easy target for competitors. Provisional patents are a good way to go if you merely want to pay a minimal fee in exchange for a one year right to use the term “patent pending.” If your goal is actually protecting your invention, provisional patents are a recipe for disaster.
2) Patent An Invention and People Will Beat a Path To Your Door
A patent is a safe, built to protect your invention. While patents are valuable protection for your invention, patents often add little to making your invention a commercial success. For those inventions which are a commercial success, patents keep competitors out of the market. This allows the patent owner to charge more, and make a larger profit. If your invention is going to be a commercial success on its own, a patent is certainly in order. Just do not expect a patent to change the likelihood of that commercial success.
1) Invention Submission Companies Turn Ideas Into Cash
Invention submissions do turn inventions into cash. It is just that most turn your invention into their cash. The USPTO has a long list of invention promotion companies against whom they have received complaints. If you do not see a particular invention promotion company on the list, investigate how long the company has been in business. Many of these companies constantly change names to avoid lawsuits and bad press. In 1999, Congress enacted the American Inventors Protection Act (AIPA). This law requires invention promotion companies to provide written documentation of the number of positive and negative evaluations of inventions they have given over the past five years, as well as the percentage of inventors receiving a net profit from the process. Some states, like Iowa, have enacted laws like the Invention Development Services Act (Iowa Code § 523G). Part of the disclosure required under that law includes:
A patent, copyright, or trademark protection cannot be acquired for you by the invention developer. Your potential patent rights may be adversely affected by any attempt to commercialize your idea or invention before a patent application covering it is filed. Nonconfidential disclosures of your creation, idea, or invention may also trigger a one- year statutory deadline for filing a patent application in the United States, after which you would be banned from receiving any patent protection in the United States, and would prevent you from obtaining valid patent rights in countries whose law provides that patent applications must
be filed before there is a public disclosure.
Not surprisingly, no invention promotion companies operate out of Iowa.
The Bottom Line
Given the time and cost associated with obtaining a patent, the question I get most often is “Is this idea worth patenting?” The question I ask the inventor is “How much do you reasonably anticipate earning from your invention?” While I could always use another jet ski, if you are only anticipating a profit of $10,000 or less, a patent is not a wise investment. If however, you anticipate profits of $100,000 or more it is certainly worth locating a reputable local patent attorney.
It should not be difficult to find a patent attorney willing to offer a free initial consultation to discuss what you have and the options available. Hiring a patent attorney is no guarantee your invention will ever turn a profit, but it is a good way to gain the knowledge you need to make an intelligent business decision regarding patenting, or not patenting, your invention.
Brett Trout
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