Welcome
PatentHelpNow.com is a free Patent Help resource for inventors, entrepreneurs, and anyone else with questions about patents.
Sign up today for our free weekly newsletter, or browse our article database for the exact topics you’re interested in. We recommend that everyone read the following:
Our 3 part “Before You Patent It” series. Essential checklists, precautions, and questions to ask before spending time and money on a patent.
Our 3 part “Patent Facts & Fiction” series. Debunks common patent myths and provides the correct version of each one. Read this before making any patent decisions whatsoever!
Our special report “Invention Scams to Avoid.” How to know if you’re being scammed, why you don’t need the services you see on infomercials, and the differences between scams and legitimate products/services.
Check back often for the freshest and most up-to-date patent help resources. If you have questions we haven’t covered, let us know what they are and we’ll happily research them for you!
Patent Help
Patent Help – Attaining a Patent
This Patent Help post on attaining a patent aims to give you an overall view on the patent process. Attaining a patent is not quick process and it is not for the weary. However, getting a patent can be the difference between millions of dollars in royalties and looking back at someone else getting rich from commercializing an invention you could have protected first.
Below, we offer a variety of tips to help you save money, ensure that the product you want to get a patent on is viable, and to help you create an effective strategy.
Patent Help: Conducting Market Research
This patent help article discusses how to conduct market research. It is critical that you conduct thorough market research to evaluate the current products that are on the market that are solving the same problem your product intends to. Many inventors believe their product is completely unique but fail to consider substitute products. For example, if ketchup did not exist, individuals would use other condiments to garnish their burgers and hot dogs.
After you identify the products, identify the companies that profit from those products being on the market from the patent holders to distributors to manufacturers. Knowledge of your competition will also help you identify potential target companies for creating a potential licensing or sales agreement with. Additionally, understanding the sales channels for products like yours will help you identify potential direct buyers of your product.
Patent Help: Conducting a Patent Search
This patent help article discusses conducting a patent search.This is a hot topic for many inventors and I have made the mistake myself in the past. You get extremely excited about the product that you fail to conduct a patent search and end up blowing thousands of dollars on useless patent work. Take the time to first conduct a patent search yourself and then have a patent attorney do a thorough review.
Patent Help: Creating Something You Can Patent
In this essay we discuss creating something you can patent. Some inventors make the mistake of assuming that you can patent an idea. You cannot. You will need to create a tangible product to secure a strong patent. Note that your claims in the patent are key to being able to keep others from producing your product.
Patent Help: Filing a Provisional Patent
Filing a provisional patent help can help save you a tremendous amount of money. However, be sure to discuss your strategy with a patent attorney to ensure your provisional is properly filed.
Patent Help: Creating a Prototype
Creating a prototype is critical to generating serious interest about your product. You need to be able to let people see how your product works hands on or at least be able to paint that picture for them. Even a simple prototype beats no prototype.
Patent Help: Identifying Your Objective (License, Sell, Build)
It is critical to identify what your commercialization strategy for your innovation is. Are you looking to sell your patent outright to the highest bidder or any interested party? Are you looking to license the product for ongoing royalty income? Or, are you looking to grab the bull by the horns, overturn the status quo, and build an empire? The objective will help identify the proper strategy for getting to your destination.
Patent Help: Creating a Business Case
Why is your product valuable? To consumers? To companies? How does it fit in with a companies current product line? How do you envision in being placed on shelves? What are your profit margins? How can this product scale? etc.
Patent Help: Creating Professional Materials
You must present yourself as a professional to be treated like one. You need to have a professional presentation ready to go for meetings with investors, banks, and potential business partners.
Patent Help: Manufacturing (Contracting? Local? Overseas?)
How are you going to deliver your product if someone wants to place an order? Where will you manufacture? Lead times? Costs? Terms?
Patent Help: Business Development (Purchase Orders)
Getting someone to pay you for your innovation can be one of the most difficult obstacles for inventors to overcome. If sales is not in your blood, get a partner on board who has a proven track record.
Patent Help: Negotiations
You need to identify the important factors you must have in a deal and those that you are willing to negotiate. Negotiation is like dancing – it is easy to be very, very bad at it.
Patent Help: Full Patent Filings
It is in our opinion that you should only file for a full patent after you can convince someone to pay you for the product or if sufficient traction has been generated by a product. The reason we advocate this is not to allow for others to steal your invention. A provisional patent provides you with 12 months to successfully validate your innovation in the market prior to having to spend the additional capital to file a full patent. If a budget is not a major concern of yours, you can file for a full patent but keep in mind that your innovation may change based on market feedback.
Before You Patent It – Part 3
| A 3-part series explaining precautions to take and questions to ask before spending time and money on a patent. |
Now you know how to determine whether your idea is worth patenting and how to choose the right strategy for capitalizing on your patent. Knowing these two things alone makes you more prepared than most. But it still might not make sense to apply for a full utility patent right away.
There is a much cheaper alternative: the provisional patent.
Very simply, a provisional patent gives you patent protection for 12 months. At the end of those 12 months, you have a choice: pay for the utility patent (the one that costs anywhere from $4,000-$15,000+ depending on how complex your invention is) or walk away and lose your patent protection. Virtually all inventors should take advantage of this.
Here’s why.
For one thing, a provisional patent is much cheaper than a utility patent. LegalZoom.com, for example, can get you set up with a provisional patent for less than a thousand dollars. If you are serious about getting a patent, this is a worthwhile investment.
Once you have your provisional patent, you can spend the next 12 months testing the waters. You can network with potential buyers or licensees, or even try creating a business around the patent. In the eyes of the US Patent & Trademark Office, you are the patent holder during that 12 month timeframe. This is an extremely valuable window of opportunity that you should use to your full advantage.
Let what happens during those 12 months decide whether you get the utility patent or not. For example, if you find entrepreneurs, retailers, or manufacturers who are interested in selling or licensing the patent, this is a good sign. Ditto for other signs of interest, such as a retailer offering to stock the invention, an investor willing to mass-produce the invention, or an eager list of customers who can’t wait to buy the invention.
You would be well-served to get the utility patent and take full ownership of this intellectual property that people are obviously interested in.
On the other hand, if your attempts to drum up interest in the patent result in slammed doors, unreturned phone calls, or an overall lack of interest, this might suggest paying for the utility patent would be a bad idea. Or maybe it would still make sense. Just make sure you have a good reason for thinking so. If nobody was interested this year, what makes you think anyone will be next year?
(When thousands of dollars and years of your time are at stake, it pays to be as honest and realistic with yourself as possible.)
We hope this series has inspired you to think long and hard about whether getting a patent is truly in your best interest. It was not our intention to make you less enthusiastic about your invention or kill anyone’s dreams. Rather, we simply wanted to help inventors consider all the relevant questions and make a decision they felt confident in.
If you want to learn more about any aspect of patents (from writing a good patent license, to choosing a patent attorney, to determining your patent’s market value and more), feel free to browse the extensive PatentHelpNow.com article library.
And, as always, feel free to ask us any questions we haven’t written about. We’ll happily research them for you and publish our findings on the website!
Before You Patent It – Part 2
| A 3-part series explaining precautions to take and questions to ask before spending time and money on a patent. |
In Part 1 of this series you learned that getting a patent is an involved process that needs to be carefully researched and thought through. By this point, you should be confident that your idea is worth patenting. Today, you’re going to learn the most common ways to make money from a patent once you have it.
Henry David Thoreau said that if you build a better mousetrap, the world will beat a path to your door. There is also a myth about patents that simply having one enables you to make money from it. Well, here’s the truth on both of those things: Henry David Thoreau never built any mousetraps, and the world never beat a path to his door. And while having a patent is the necessary starting point, that in and of itself is not going to make you any money.
Rather, you must do one of three things:
1) Sell your patent
2) License your patent
3) Sell the invention itself (through stores, the web, etc.) to customers
Each of these strategies offers unique advantages and disadvantages that need to be considered in light of your own situation. (There is no one “right” way to do it, only the right way for you!) We will outline each strategy here to get you thinking about which one fits your strengths, weaknesses, and expectations.
Selling Your Patent
As the name implies, selling your patent is a strategy where you sell full ownership of the patent to someone else. This could be an entrepreneur who wants to create a company around the invention, a retailer who wants to sell the invention in stores, or a manufacturer who wants to mass-produce the invention. It is a “quick exit” strategy whereby you wash your hands of the patent and all future responsibility for it in one fell swoop.
Pros of Selling Your Patent: Cash out in one lump sum. No future hassles or involvement with the patent. Leaves you free to move on to the next project or enjoy your payout from this one.
Cons of Selling Your Patent: Possibility of having to watch whoever you sell the patent to reap huge profits from it that far exceed what they paid you.
If you are not business-minded or simply need the money right away, consider selling your patent if you have the opportunity to do so. But remember: entrepreneurs, retailers, and manufacturers are not going to beat a path to your door. In most cases, you will have to approach them. To learn how to get potential buyers interested in your patent, visit IdeaBuyer.com or check out our library of free articles on such topics as valuing your patent and creating a pitchbook to get it sold.
Licensing Your Patent
Licensing your patent is a bit more involved than selling it outright. A patent license allows a third party (an entrepreneur, retailer, or manufacturer) to utilize your patent for their own benefit, while you retain ownership of it. This person or company is called the licensee. In exchange for this privelege, the licensee agrees to pay you (the licensor) some agreed-upon amount of royalties. For example, you might grant a manufacturer a 5 year license to use your patent in exchange for 10% of yearly product sales.
A patent license creates an ongoing business relationship between you and the licensee. You will need to be involved at least enough to ensure that they are meeting the performance obligations they agreed to.
Pros of Licensing Your Patent: Enables you to share in the future profits that your licensee may achieve by capitalizing on your patent. Creates a passive income stream.
Cons of Licensing Your Patent: Requires you to stay involved with the patent. Requires you to wait to receive income from the patent (unless you also negotiate an up-front payment into the licensing agreement.)
If you don’t mind the occasional meeting or conference call with whomever you license the patent to, and you are willing and able to wait to receive income from the patent, licensing may be the way to go.
(This is only a brief overview of patent licensing. See the “Licensing a Patent Help” section of PatentHelpNow.com for more detailed articles on how to value your patent, how to pitch your patent to companies, and how to write good performance obligations into any patent license you sign.)
Sell The Invention Itself to Customers
This is the riskiest strategy of the three, and also the most potentially lucrative. Rather than selling or licensing the patent (thereby transferring the responsibility for capitalizing on it to someone else) you take on that responsibility by creating the invention and selling it to customers. This makes you an entrepreneur.
The risk is that you will be unable to convince a retailer to sell your invention or unable to sell it yourself via the web or some other medium. The reward is that, if you can, the profits are yours and yours alone.
Pros of Selling The Invention to Customers: You maintain complete control. You share profits with no one. You make much more money if you can successfully sell the invention to your target market than you would by selling or licensing the patent to someone.
Cons of Selling The Invention to Customers: All of the risk is on you. If you cannot successfully sell the invention to your target market, you stand to lose all the time and money you invested in trying to.
This strategy is best suited for people with entrepreneurial and business backgrounds. If you relish the opportunity to transform a patent from a piece of paper to a thriving business with hard work, networking, and deal-making, this could be the way to go. If you would rather cash out and let someone else do all of that, sell or license the patent instead.
See our articles on getting an invention on store shelves, who and who not to take investment money from, how to choose the right business partners, and how to fast-track an invention to market.
Again, none of these strategies is necessarily better than the others. It all comes down to what your strengths, weaknesses, and expectations are. The important thing at this stage is that you start thinking about which strategy suits you.
If you’re still convinced that getting a patent is worthwhile, great! (We didn’t mean to scare you off, after all.) Proceed to Part 3 of the series, which explains how using a provisional patent can lower your risk and save you thousands of dollars.
Before You Patent It – Part 1
| A 3-part series explaining precautions to take and questions to ask before spending time and money on a patent. |
Getting a patent is a serious investment of time and money. Gene Quinn, IP attorney and founder of IPWatchdog.com offers a chart of how much various types of patents cost. Depending on the complexity of your invention, the cost of patenting it can be staggering. According to Quinn, a “relatively simple” invention (such as an electric switch, coat hanger, paper clip, diapers, earmuffs, or an ice cube tray) will cost anywhere from $4,000-$6,000 to patent.
If your invention is “relatively complex” (such as a shock-absorbing prosthetic device), expect to shell out anywhere from $12,000-$15,000. Furthermore, Quinn notes that the prices shown in his chart are “just ballpark figures” and warns that attorney fees could make the overall cost even higher.
It can also be very time-consuming. As many as 1-5 years can elapse from the day you file a patent application until the day when you actually have full patent rights. And it is not just a matter of filing the application and then passively waiting for the wheels of the US Patent and Trademark Office bureaucracy to turn. In most cases, you will be actively involved in the process, working closely with a patent examiner who is appointed to ask you questions and see to it that everything goes according to planned.
So despite what you may have believed or been told, getting a patent is generally not quick or cheap.
Let’s be clear: none of this is to say you shouldn’t get a patent. If you want to sell or license an invention, patent protection is indispensable. Rather, the point of this series is stressing that it is a big decision that should be researched, contemplated, and planned rather than rushed into.
Several important things must be taken into account. They include:
1) Whether your idea is worth patenting (is there a market?)
2) Whether you have a viable plan and the resources to commercialize the patent
3) How long it will take to execute said plan
While it is impossible to know all the details in advance, these questions must be considered. Just as you wouldn’t buy a car without knowing the fuel mileage it gets or how quickly it depreciates in value, you should not get a patent without some idea of how and when you will capitalize on it.
Do not dismiss these concerns as “things you’ll figure out later.” Later is often too late, and the worst thing you could do is pay $4,000-$15,000 or more for patent you don’t want to or cannot capitalize on. So let’s begin by asking some questions to determine whether your idea is worth patenting.
Who will buy it?
There’s nothing worse than wasting weeks, months, or even years theorizing about a creation that’s “gonna be soooo great!” only to discover that no specific segment of customers truly wants it. To avoid this nightmare scenario, tell others about your idea. Ask them if and in what way it would truly improve their lives. The trick here is asking people who don’t know you very well. They are more likely to be honest instead of preoccupied with not hurting your feelings.
How will it be mass-produced?
Another common pitfall is glossing over the messy particulars of how something will be made. In the euphoria of brainstorming, your mind is naturally drawn to the sexy aspects of invention, such as the huge market waiting to be capitalized or your pitch to investors. Instead, force yourself to focus on exactly what it will take to bring your patent idea to life. How can it be made? What materials are needed? What types of skills are necessary to put it all together? Having firm answers to these questions turns you from dreamer into doer.
How much will it cost?
If technical particulars are easy to glaze over, forecasts about costs are downright ignored until it is unavoidable. This is a mistake. Crunching the numbers of how much it will cost to create your patent idea is not only necessary for investors to take it seriously; it will also make the idea real in your mind. Once you know what it will take to make your idea, do some basic research. Where can the materials be purchased cheaply? Do you know anyone with the necessary skills who will work for a stake in the profits instead of up-front cash payments? An entrepreneur who can answer these questions will be taken seriously by everyone involved in the patenting process, from attorneys to the professionals in the industry you are trying to enter.
How such products normally sold?
Finally, you need to know how your product will reach paying customers. If your idea is for a new, thinner and more puncture resistant bicycle tire, for example, you need a list of the top bicycle manufacturers in the country. These are the people who could potentially license your patent and put your patent idea into practice. A possible next step would be gathering the names of the top bicycle retailers. These are the stores who would be selling the bicycles. This type of analysis forces you to trace the chain of people you’ll need to work with in order to succeed.
If you had trouble answering these questions, your idea may not be ready for patent protection. Don’t worry, as this does not mean your idea is worthless! All it means is you need to do some more homework before spending years and thousands of dollars on a patent.
If you were able to answer these questions, proceed to Part 2 of this series which deals with coming up with a plan to commercialize your patent.
Patent Facts & Fiction – Part 3
| A 3-part series debunking the most widespread and misleading myths about patents. |
We’ll close out this series by debunking patent myths 5, 6, and 7, as well as offer some parting words to help you avoid falling for any myths not covered here.
Patent Myth #5 – “A patent protects what’s in the drawings in the application.”
No, it doesn’t – a patent protects what is in the claims of an application. The drawings you include with your patent application are only there to give visual examples of the invention as it is spelled out in your written claims. If there is any discrepancy between what is written in your claims and shown in your drawings, only what is written in your claims is protected.
If it’s not in the claims, it’s not protected.
The claims may cover more or less than what is drawn. Obviously, this means it is in your best interest to put as much in the claims as you can, versus the drawings. However, correctly interpreting what, exactly, the claims cover can be quite difficult in and of itself. The more concerned you are about this, the more sense it makes to spend the money and hire an experienced patent attorney to weigh in on the matter.
Patent Myth #6 – “Patenting something means I, and I alone, can make and sell my invention.”
Wrong. Refer back to Part 1 of this series, where the official USPTO definition of a patent states:
“What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.” [emphasis added]
Therefore, the exact opposite of this myth is true. And remember: you just learned that only the claims made in a patent are protected. This means that if someone else already has a patent with broader claims that encompass your invention, they have the right to stop you from making, using, or selling your invention.
(This underscores the importance of doing a thorough patent search before patenting anything!)
Also, remember that while you as a patent holder have the right to stop others from making, using, or selling your invention, the burden for stopping them is squarely on your shoulders. The USPTO does not proactively or automatically stop such infringements.
Patent Myth #7 – “Starting with a provisional patent is costlier than starting with a non-provisional patent.”
Hardly. In fact, the main benefit of a provisional patent is that it costs far less than a non-provisional (also called a utility) patent and gives you 12 months to gauge interest in the patent before spending the extra thousands of dollars for full, non-provisional patent protection.
Virtually all inventors should probably start out with a provisional patent and only go further than that once the patent proves it has legs. It seems like the only people saying a provisional patent is costlier are patent attorneys. While patent attorneys as a group are no more or less dishonest than other people (or other lawyers), it’s in their immediate economic interest for you to get a full, non-provisional patent. It equates to higher fees for them.
Here is an About.com webpage discussing both the advantages and disadvantages of provisional patents. You will most likely conclude that the advantages far outweigh any disadvantages.
There is one valid criticism of provisional patents, however, and that is that you will not be able to add anything to your drawings or claims after the fact. That is, the drawings and claims you include in your provisional patent application will become your non-provisional patent if you decide to get one.
For this reason, it is important to make sure everything you want to be protected is included in your provisional patent application.
By this point, you should be much better able to see through the various patent myths out there and recognize them for what they truly are. However, there will likely be more myths in the future, limited only by human imagination and naiveté. So in closing, here are some general rules to keep in mind when evaluating patent advice:
1) Are there potential conflicts of interest with the person giving the advice? (ie, are they trying to sell you anything?) This doesn’t mean everyone with something to sell is lying to you to make a buck. It simply means that they might be, and that you should be on the lookout for obvious signs of it.
2) Does it sound too good to be true? How nice it would be if getting a patent was as simple as jotting down an idea and owning all rights to it. Alas, that is not true, as you know now, and neither are most other things that sound too good to be true. This old saying will protect you from 9 out of 10 myths on any subject, not just patents.
3) Where’s the evidence? Nothing is easier than to theorize about a subject and speak in glib generalities. Unfortunately, this is rarely enough to achieve your goals or steer you in the right direction. In this series, we’ve repeatedly cited outside sources like the US Patent & Trademark Office, reputable patent attorneys, and impartial comparisons on websites like About.com. You should demand the same attention to evidence and detail in any patent information source you use.
Patent Facts & Fiction – Part 2
| 3-part series debunking the most widespread and misleading myths about patents. |
Part 1 of this series began by introducing the official definition of what a patent is and laying out 7 widespread but dangerous patent myths. We will now begin to debunk each one.
Patent Myth #1 – “You can patent an idea.”
No, you can’t. No one can, because patents do not protect ideas. They protect, in the words of patent lawyer and IPWatchdog.com founder Eugene Quinn, “identifiable embodiments” of ideas.
| “Unfortunately, despite what you may have heard, there is no effective way to protect an idea through intellectual property law. Copyright protects expression and patent law protects inventions, and neither protect ideas. In both cases the idea is the first critical step, but without some identifiable embodiment of the idea there can be no intellectual property protection. That does not mean that you should give up when you only have an idea, but it does mean that you ought to proceed to flush out your idea to the point where it is concrete enough to be more than what the law would call a “mere idea.” The moral of the story is that ideas alone cannot be protected..” – Can Ideas Be Protected? [emphasis added] |
In other words, you have to actually create something based on the idea. That’s what you can patent. This might sound obvious now that it’s been explained, but it’s astonishing how many people believe they can scribble down some idea or concept they thought up and get a patent on it.
One big reason this myth gets so much mileage is invention scam artists. It is easier for them to sell products and services to naïve inventors if the inventors believe getting a patent is as simple as thinking of an idea. It’s a much harder sell when you add “but you actually have to invent something based on the idea first.”
Nevertheless, that is exactly what you have to do. So ignore anyone who tells you otherwise.
Patent Myth #2 – “The US Patent & Trademark Office will stop people from infringing on my patent.”
No, they won’t – unless you bring a lawsuit against the person or company you believe has infringed on your patent. Only once you prove that someone has indeed infringed on the claims made in your patent will the US Patent & Trademark Office get an injunction issued against the infringer forcing him to stop.
You may be asking “well how hard can that be?” Unfortunately, it’s impossible to give a one-size-fits-all answer to that question. It depends on many things, such as how complex your patent is and how flagrant the infringer’s violation of it is. If your patent is relatively simple, an experienced patent attorney might have an easy time proving that it was infringed upon.
On the other hand, if your patent is relatively complex, even the best patent attorney might take years to successfully prove infringement and get an injunction issued to stop it. Only the patent attorney you work with can accurately forecast how long that will take.
Nevertheless, it is important to know that the US Patent & Trademark Office is in no way “looking out for you” in the sense of proactively or automatically stopping people from infringing on your patents. They will only act when you demonstrate an infringement via the courts.
Patent Myth #3 – “Patents are intrinsically valuable.”
Refer back to the US Patent & Trademark Office’s official definition. The pertinent part for this myth says “What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.” What does this mean for the idea that patents are intrinsically valuable?
It means that they are not intrinsically valuable. If a patent represents nothing but the right to stop others from making, using, or selling the invention, it logically follows that the patent is only valuable if other people want to make, use, or sell the invention. That is, if it is commercially viable.
So you see, it is possible for a patent to have no value (an invention nobody wants or needs), some value (an invention some people want or need), or high value (an invention lots of people want or need.) The important thing to remember is that a patent’s value hinges on whether people want or need it, not any intrinsic value that all patents have.
This myth sets the stage for Patent Myth #4, which is also very widely believed.
Patent Myth #4 – “Simply having a patent allows you to make money from it.”
The upshot of believing patents are intrinsically valuable is believing that simply having a patent allows you to make money from it. Nothing could be further from the truth. Even if your patent has value (that is, people want or need the invention it protects), that is still no guarantee of making money.
If you read our “Before You Patent It” series, you know that Henry David Thoreau never built a better mousetrap and the world never beat a path to his door. That saying is only partially correct. Building a better mousetrap is important, but spreading the word about it is equally important. Same goes for making money from a patent.
If you want to sell, license, or otherwise commercialize the patent, you will need to market it. You will need to make entrepreneurs, retailers, and manufacturers aware that it exists. This can be done in several ways:
- Creating a pitchbook for your invention
- Putting together a presentation for your invention
- Marketing it only to retailers and manufacturers most likely to be interested
- Etc.
PatentHelpNow.com has several free articles on each of these subjects in particular and on commercializing your patent in general. Review them and determine whether you are willing or able to do that kind of work – before you get a patent.
Part 3 will wrap up this series by debunking patent myths 5, 6, and 7.
Patent Facts & Fiction – Part 1
| A 3-part series debunking the most widespread and misleading myths about patents. |
Too many inventors and entrepreneurs have false ideas about patents. This is because for every factual, well-researched article, book, or blog on patents, there are at least 5-10 bad ones spreading myths and attractive lies on the subject. Indeed, patent myths have become so widespread that even otherwise intelligent and skeptical people are falling for them.
This would not be so bad if the myths in question were harmless. But they are not; virtually all patent myths are harmful or potentially harmful. (Some myths reflect serious misunderstandings of even the basics.) As you learned in our “Before You Patent It” series, getting a patent is a significant investment of time and money. Committing thousands of dollars and years of your life to something, based on false notions and expectations, is not smart.
The advice in this series is intended to save you from doing that by debunking the most misleading patent myths. Before tackling specific myths, however, let’s begin by defining once and for all what a patent is. The following definition comes straight from the US Patent & Trademark Office’s website:
| What Is a Patent?
A patent for an invention is the grant of a property right to the inventor, issued by the Patent and Trademark Office. The term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. US patent grants are effective only within the US, US territories, and US possessions. The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. – “What Are Patents, Trademarks, Servicemarks, and Copyrights?” |
Familiarize yourself with this definition, as we will refer back to it often when debunking specific patent myths. You should also reference it when you talk to anyone about patents (especially anyone trying to sell you patent-related products and services.) Does what that person says fit with the above definition of what a patent is? This question alone should keep you safe from 90% of the patent disinformation out there.
Now, let’s proceed to the 7 specific patent myths we’re debunking today:
1) “You can patent an idea.”
2) “The US Patent & Trademark Office will stop people from infringing on my patent.”
3) “Patents are intrinsically valuable.”
4) “Simply having a patent allows you to make money from it.”
5) “A patent protects what’s in the drawings in the application.”
6) “Patenting something means I, and I alone, can make and sell my invention.”
7) “Starting with a provisional patent is costlier than starting with a non-provisional patent.”
As we alluded to earlier, each of these myths is potentially harmful if acted upon. Each of them could result in you spending large amounts of time and money and not getting what you thought you would get (at best) or getting into serious legal or financial trouble (at worst.)
So let’s take each of these myths, one at a time, and dissect the truth behind each one. Part 2 of this series gets us started with possibly the most widespread patent myth of all – the notion that you can patent an idea.
US Patent Law
US Patent Law – The One Year Rule
The purpose of this piece is to examine the sometimes baffling, frustrating, and somewhat unfair, aspects of what’s called the “One Year” rule when it comes to obtaining a patent for an invention.
Basically, patent law is kind of funky. It’s not easy to get a patent, and this is deliberate. Consider that patent attorneys make a median income of about $187,000. (http://www.oppedahl.com/opportunities/#money). Like the pharmacist said, “I didn’t go to school for six years to learn how to count to thirty.”
Even in what seems like a straightforward situation, obtaining a patent for an invention is a complicated undertaking. Let alone that there is an odd rule associated with it, one that can knock you right out of the ballgame before you even start.
According to United States patent law, a patent for an invention may be awarded to either a person or to a company provided that the invention to be patented has not been offered for sale for greater than a full calendar year before the patent’s application date. One wonders if leap years buy you an extra day, but it would cost too much to ask a patent attorney that question. If you know, email us.
The catch here is that this law is not just related to actual sales, but even “offers” to sell, i.e. advertising, or salespersons making sales offers, so if the invention as a product has been advertised or the product pitched, the one year egg timer has started and the sand is running.
If life and law were simple and straightforward, it would be nice if the filing of a patent application should precede any sales effort. Or better yet, if you had been selling the invention for any length of time and had no competitors yet.
However, life’s rules are imperfect, and sometimes a hot idea needs to hit the market ASAP, either because of fear of a similar invention lurking out there or just because the money from sales is needed for the financial survival of the individual or company.
As a result, you, as a patent seeking inventor, or any company with a product that deserves patenting, should fully appreciate and weigh carefully what it is that starts the sand running, because when the sand runs out, it’s over baby, and there’s no do-over.
So, what exactly is it that starts the one year countdown?
One thing that will do it is that there has been a sale, or an offer of sale has been made for the invention. This can be documented by either putting the sale offer in writing, in the form of a letter, or email we imagine, even. Or, by direct contact in the form of a meeting where the inventor shows drawings or diagrams and or a functioning prototype and makes an offer to another company or individual to sell them the invention. If either of these have occurred? The clock is ticking.
Another criterion is that the invention must be ready to be patented at the time the sale or sales offer occurs. This criterion is met if the inventor’s drawings at the time of the offer of sale or sale were of adequate detail and quality to allow the buyer or potential buyer to produce the invention.
For an invention to be deemed patentable “it must be new as defined in the patent law, which provides that an invention cannot be patented if: “(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent,” or “(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country more than one year prior to the application for patent in the United States . . .
“If the invention has been described in a printed publication anywhere in the world, or if it was known or used by others in this country before the date that the applicant made his/her invention, a patent cannot be obtained. If the invention has been described in a printed publication anywhere, or has been in public use or on sale in this country more than one year before the date on which an application for patent is filed in this country, a patent cannot be obtained. In this connection it is immaterial when the invention was made, or whether the printed publication or public use was by the inventor himself/herself or by someone else. If the inventor describes the invention in a printed publication or uses the invention publicly, or places it on sale, he/she must apply for a patent before one year has gone by, otherwise any right to a patent will be lost. The inventor must file on the date of public use or disclosure, however, in order to preserve patent rights in many foreign countries.” (http://www.uspto.gov/web/offices/pac/doc/general/index.html)
So, be careful and watch the calendar and your activities so you don’t jeopardize your chances of obtaining a patent.
PatentHelpNow.com is a website dedicated to providing inventors with free patent help. You can contact us at: PatentHelpNow@gmail.com
Assigning a Patent Resources Help
If your goal is to sell your patent outright to someone else, you need to do what is known as “assigning” the patent. Very simply, assigning a patent is when you file paperwork to transfer your patent rights to the person or organization you are selling the patent to. Upon completion of this process, they become the new patent holders instead of you. Unfortunately, because there is some paperwork involved, assigning a patent is a bit more complex than say, selling a car. There are many legal technicalities and pitfalls to be mindful of, and it pays to investigate these before diving into the process of assigning your patent to someone.
And while PHN strives to be the best patent help resource, we realize no one website can do it all. Therefore, we took the liberty of collecting the best free patent resources the rest of the Internet has to offer and displayed them here. Take the time to familiarize yourself with them, in addition to the comprehensive patent assignment articles we offer here on PatentHelpNow.com.
1) USPTO Assignments on the Web
This handy web tool allows you to query the US Patent & Trademark Office’s database of pattent assignments. If you are wondering who has licensed which patents to whom, keying in the relevant names (of individuals and the patents you have in mind) will tell you in relatively short order. This tool is most helpful if you are looking for either a specific patent or a specific person who you believe has assigned that patent.
2) Guide to Patenting and USPTO Patent Applications
If you are completely new to the subject of patent assignment, this free guide from About.com is a terrific place to start. After a mere 15-20 minutes of reading you will understand all the basic terminology as well as the underlying mechanics of how patent assignment works. Helpful tips for ensuring your patent assignment is valid and recognized by the courts are also offered. Most inventors (even experienced ones) would probably do well to give this one a read!
3) Patent Assignments Must be in Writing, but Some Transfers are not Assignments
One of the most popular patent-related blogs on the Internet offers an insightful post advising patent holders to use caution when assigning their patents to someone. The post draws upon a controversial court decision in which an attempted patent assignment was overturned by a judge. Read this post from start to finish (including the many thoughtful comments) to ensure that this doesn’t happen to you!
4) Sample Patent Assignment Contract
You don’t need to become a lawyer (thankfully!), but every inventor should at least have a working knowledge of a patent assignment contract. This website offers a sample agreement that we encourage you to glance through and familiarize yourself with. We also have an in-depth article in which we explain the most important sections of that agreement and what you should know about them. Required reading for any patent holder or inventor!
PatentHelpNow.com is a website dedicated to providing inventors with free patent help. You can contact us at: PatentHelpNow@gmail.com