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Do I Need to Patent My Invention?

What Is a Patent and Why Do I Need One?
One of the first things people think of when they come up with a great idea is “I should get a patent on this.” But what is a patent? A patent is simply a document describing your invention and telling everyone which parts of your invention you want to protect. A good patent describes your invention in broad terms, making it more difficult for your competitors to simply change a few things and get around your patent. As you might imagine, good patents are hard to get. If you write them too broadly, they cover things that are already out in the public. This makes it easy for your competitor to invalidate your patent. The key is to draft a patent that is narrow enough to avoid covering anything already out in the public domain, but broad enough to prevent competitors from easily circumventing your patent. This is not an easy task. Patents are so complex, that ordinary lawyers are not even allowed to get them for their clients. Patents are drafted by special patent lawyers, who receive special training, have undergraduate studies in a science and pass a special Bar exam, allowing them to practice before the United States Patent and Trademark Office (USPTO).

How Much Does a Patent Cost?
As with anything, different patents have different prices. A very narrow patent on a very simple invention might run $3,000. But it is unlikely that a $3,000 patent would get you much protection, or be easy to enforce against infringers. On the opposite end of the spectrum, you can pay $100,000 or more for a broad patent on a complex invention. It is important to talk to several patent lawyers to get quotes for the cost of obtaining a patent and the scope of protection they believe they can obtain for you. You will likely get a range of price quotes for your patent. Any quotes substantially below the average are likely to be too narrowly drafted to be of much value, while quotes substantially above the average are likely to be overkill. $9,000 to $12,000 is the price range you can expect for a quality patent covering a simple mechanical invention.

How Long Does It Take to Get a Patent?
For a simple mechanical invention, it may take three years or more to get your patent. While there are ways to reduce this time, these expedited options typically come with dramatically increased costs. Once you file your patent application, you can start marking your invention “patent pending.” While you cannot sue infringers while your invention is patent pending, the patent pending marking serves as a warning to competitors that you may have a patent shortly, that may force them to stop selling their infringing products immediately. Getting your patent faster is not always a good thing though. If you are still developing your invention, having the patent in the pending stage allows you to adjust the scope of your patent protection to narrow it ways that do not affect its commercial viability and broaden your scope of protection to cover aspects of your invention you may not have believed were as important early on. While you cannot add additional material to your patent application once you file it, you can adjust your scope of coverage to cover things you may have described in the original patent application, but may not have originally sought to protect. As you can see, having a detailed patent application from the start allows you adjust your scope of protection as your invention develops. This is another good reason to spend a little more time finding a patent lawyer who focuses not only on where your invention is today, but on where it may be three years from today.

Is My Invention Even Patentable?
To determine if your invention is already out in the public you can obviously Google your idea. In addition, you can conduct a cursory search of patents and patent applications at Google Patents. If you do not find anything similar in your searches, your patent lawyer is available to perform more comprehensive searches. Some of these searches include infringement searches, to determine if your invention infringes anyone else’s patent, and patentability searches to determine if your invention is patentable.

Should I Get a Patent?
From your patent lawyer’s perspective, it is always a good idea for you to pursue a patent. From your perspective, however, getting a patent is not always your best option. If your invention will only be of interest to buyers for a year or two, you are unlikely to need a patent. If your invention is similar to competitors in terms of value and maximum buyer price point, you are unlikely to need a patent. If your invention will not generate enough revenue to pay for the patent, you are unlikely to need a patent. However, if your invention will allow you to: 1) manufacture your product more cheaply than the competition; 2) provide buyers with increased value over the competition; and/or 3) allow you to charge more for your product than the competition, you may want to pursue a patent. Some important questions you should ask before pursing a patent include: What kind of annualized profit can I expect with a patent? How many years, if ever, will it be before my patent pays for itself? Are there non-infringing alternatives competing, or likely to compete, in my market space? Will my product be obsolete before the patent issues? Will less expensive “trade secret” protection suffice? Will anyone be interested in buying or licensing my technology? How you answer these questions will determine whether or not you should pursue a patent.

Do I Need a Patent Lawyer to Get My Patent?
Technically no. You do not need a patent lawyer to file your patent. Although you can file your patent application yourself, the odds of you drafting a better patent than a reputable patent lawyer are very small. The technicalities associated with preparing a patent application and arguing back and forth with the Patent Office are just too complex. You very well may end up with a patent, but it is unlikely that patent will be as broad or enforceable as that same patent drafted by a good patent lawyer. While you need a patent lawyer, it is unlikely that you need the best patent lawyer in the word. You just need the best patent lawyer for you.

How do I Pick My Patent Lawyer?
Finding the best patent lawyer for you means looking at factors like cost, skill, experience, and communication. Not surprisingly, all patents are not created equally. If you hired fifty different patent lawyers to draft a patent on your invention, all fifty patents would be different, each having a different scope of protection and enforceability. Skilled patent lawyers, who have obtained hundreds of patents for their clients, typically obtain better patents than more inexperienced patent lawyers, who have drafted fewer patents. While better patent lawyers often charge more, the best patent lawyer for you is not necessarily the most expensive. Ask around. Ask friends. Ask other lawyers. Search the internet for patent lawyers in your area. Go to the USPTO.gov Web site and see how many patents the patent lawyer has drafted. Go visit with the patent lawyer. If you like the lawyer, confirm that he or she will be the one actually drafting your patent and that he or she will not simply be passing your patent off to an inexperienced underling. Ask if the patent lawyer has experience defending patents in court. Success defending patents in court, often translates into drafting better patents. The most important thing to remember when choosing the best patent lawyer for you is that you feel comfortable working with that lawyer. You need to feel that you understand them and that they understand you. There are a lot of patent lawyers out there. Meet with as many as you can. Once you have weeded out the low end and high end lawyers, choose the one who makes you feel the most comfortable that they can address all of the concerns noted above. Spending a little more time up front picking the right patent lawyer will save you time, money, and heartache down the road.

Posted in General, Patent Law.