What Everybody Needs to Know Before Starting the Patent Process

Rich Goldstein

Founder & Principal Patent Attorney
Patent Process montage

When considering pursuing an invention or idea, the first thing you should ask yourself is “Can I patent it?”

The fact is, most people, when considering pursuing an invention or idea, will start by asking themselves, “how am I going to get this on the market?” This is a BIG problem, because they are asking themselves the wrong question first, and it could cost them tremendously.

In particular, because they think the marketing is most important, they look for someone to help them market their product, rather than seeking out the right advice about whether they have something unique enough to be patented.

As a result, they can spend $10,000 or more, trying to sell an idea which no one will want, because they can’t patent it, and thus they don’t own it. And clearly you can’t sell something you don’t own!

I recently spoke to a woman who had hired an invention marketing company shortly after she had come up with an innovative new design for a kitchen tool.

The Wrong Question

Like many people, immediately after coming up with the idea she asked herself “how am I going to get this on the market?”

That question led her to conclude that a marketing company was the best way to help her, and she therefore invested over ten thousand dollars in the course of the next year, thinking she was headed down the right track.

She was under the impression that while they shopped her idea to major companies, she was protected. When I asked her what kind of protection she had when they began to shop the idea, she said she didn’t really know.

And when I asked her what were the closest items to hers that had been patented, she didn’t know. Even though she was a savvy businesswoman, she had never attempted to pursue an invention before, and didn’t know much about this area.

She didn’t know she needed good legal guidance and just assumed she was protected. Apparently the marketing company she was working with filed a provisional patent application for her initially.

Now filing a provisional application isn’t necessarily a bad step if done correctly and strategically. In this case, however, she didn’t know the difference between a provisional patent and a non-provisional patent.

What Is the Right Approach?

In fact, she didn’t understand that there were different kinds of patents nor did she have any sense of what was the right approach for her. We went on to explain to her, a provisional patent can be an effective placeholder when written correctly.

It can establish priority for the inventor, but is never reviewed by a Patent Examiner, and will never (by itself) become a patent. So what she didn’t understand, is that it only maintains patent pending status for a year. If she doesn’t file a utility patent application within a year, she will lose any priority.

Also, what she didn’t know is that a provisional application is only as good as it is well written. A poorly written provisional, one that doesn’t adequately describe the invention and meet certain requirements under the patent laws, might not protect her. These details were not made clear to the her, prior to talking with us.

In fact, it wasn’t even clear if a patent attorney had written her provisional application at all..

Note: Also, under the patent laws (35 U.S.C. § 102(b), once an invention is publicly disclosed (such as through marketing it) if a properly written patent application is not filed within a year, the inventor will forever lose the right to patent it. I’ve seen that rule kill more inventors’ chances than anything else.

Unfortunately, in many cases people rely on a poorly written provisional application to try to stop that one year “clock” from “ticking”. Please – If you are out there marketing something without a well written patent application, do not forget about the one year rule!

Of course putting an unprotected product in public view is still not advisable. But even if you are lucky enough that no one attempts to steal your invention, if that year expires it will be too late to ever pursue patenting it!

Too Late

So not understanding the difference between a provisional patent and a non-provisional patent, this woman did not realize that, at best, she had one year to hire a patent attorney to write the utility patent application necessary for her to get the actual protection of a patent.

She thought she was protected already, and didn’t need to do anything else to patent it. But that was not the case. It turns out, she didn’t even have the ability to patent it at all.

She had been so focused on the marketing aspects of this project, and didn’t ask the critical questions about the legal aspects of her project. It so easy to miss the most important first steps if you don’t have expert legal guidance in the beginning.

It’s Not Your Fault

Even most lawyers (those who don’t specialize in patents), don’t understand the details of how the patent system works. So that brings us back to the original point.

The first question you must ask yourself when pursuing an invention or idea is “CAN I PATENT IT?” The above example demonstrates the importance of legal protection. NOT receiving the right legal advice can end up costing you a lot.

Worst case scenario: it can even cost you your whole project and tens of thousands of dollars, or even more if your project could have hit big, but you did not properly protect it.

Avoid making this same mistake by understanding what your possibilities are legally. One word of advice: trust only a registered patent attorney to do this. I have personally seen and heard so many cases like this.

I don’t want your experience with your invention to be like this – I want you to be protected. This is why it is important to have an evaluation conducted by an expert. If we end up working together, I insist on first finding out exactly where you stand legally with your invention or idea.

Meaning I want to assess whether there is room for your idea amongst existing patents. Then, I want to consider what our available options are, and discuss strategies for protection according to your circumstances and goals.

Don’t head down the wrong path, spend thousands, use up your resources, and time, without being protected.

Are you ready to do something about your invention or idea now? The best way to take action is to call and talk with us about whether starting a Patent Evaluation makes sense for you as your next step.

This could be the most important call you ever make in the process of getting your invention protected. Call us now at 800-728-8166 to discuss starting your Patent Evaluation.

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