It’s a question that every inventor and entrepreneur developing a new product will face sooner rather than later: do you really need to file a patent application? It’s a tricky question, and different experts will weigh in with different and even conflicting advice.
Patent applications are costly and time-consuming endeavors and startups are generally running on shoestring budgets. The fact of the matter is that, strictly speaking, patents are not necessary. You can develop and release your product without getting patent protection. Doing so might not actually do any harm to your business at all.
But, on the other hand, someone else acquiring the patent rights to your invention can be devastating. There are a number of benefits that come with patent protection, and preventing someone else from sniping the patent from you is a major one. Beyond that, having patent protection brings a number of benefits which makes them valuable business assets.
Protecting Your Intellectual Property
Simply put, patents are the best way to protect your intellectual property. Once you begin selling your invention, you only have one year in which to file for patent protection. After that window closes, you have forfeited your patent rights.
With the America Invents Act of 2011, the USPTO moved from a ‘first to invent’ to a ‘first inventor to file’ system. What this means is that, even if you can prove that you invented your product before someone else, they can still get the patent if they apply for it before you. This can leave you on the outside looking in, and can mean you seeing all the time, money, and energy you put into developing your idea snatched away just when you thought you were going to start seeing returns.
This is definitely a worst-case scenario. But, having a patent also helps you to stave off more nimble competitors who, having been alerted to the potential of your product, are able to ramp up their own production and distribution faster than you and gain the first-mover advantage. This can be a heavy blow for an emerging company — often, startups need the advantage of being the first on the market with that particular product in order to compete. A patent application on file will help you maintain that advantage.
Without patent protection, other firms who take note of the success of your product can also start manufacturing their own version and undercutting you, taking advantage of economies of scale and integrated manufacturing/distribution systems that larger entities have access to. The primary purpose of a patent is to protect you from just this sort of thing. That lead time advantage can be crucial to the success of an emerging startup.
It Makes Your Product More Eligible for Licensing
If you plan on licensing your invention to a larger firm, it’s a good idea to get a patent. During licensing negotiations, a patent is a powerful asset that an inventor can bring to the table. Big distribution companies will often feel much more comfortable investing in a licensing agreement if the product in question has a pending patent, or is already protected. This provides a kind of guarantee of value: if the product is patented, they can be fairly confident that they won’t be facing competition from their rivals, which makes the license more valuable.
Companies will often only deal with products that been patented, or are at least patentable. By taking steps down this road yourself, you reduce the amount of effort and cost for the licensing firm, and you also reduce their legal risk. These are all things that will reflect positively on you when companies are considering licensing your invention.
This is something to consider even if you aren’t planning on licensing your product right away. Remember that, once any public disclosure of your invention or any sales of your product are made, there is only a one-year window in which you are still eligible for patent protection. If you decide to license your product down the road, you may no longer be able to claim the advantage of having a patent-protected product.
When Should You Patent?
The question of when you should file a patent is maybe as important as the question of whether you should get a patent at all. Filing for a patent at the wrong time, or filing a patent incorrectly, can actually do you more harm than not having applied for a patent in the first place. Patents, after all, are expensive. In order to ensure that you are gaining the benefit of that investment, it’s important to file the patent application the right way at the right time.
You do not want to file a patent as soon as you’ve had your idea. Patenting is not the first step in the product design and development process, and there are some important reasons for why that is. Before applying for a patent, there are a few stages of development you want to go through first. They are:
- Market research
- Preliminary patent search
Each of these is an important early stage in product design for their own reasons, and they should always come before any patent application.
Market Research: Before you invest a bunch of money into patenting and prototyping, you want to know whether your invention has profit potential. Not all good ideas are profitable: if your invetion will cost more to manufacture than the market will be willing to pay for it, then it will never be a viable product — even if it is a brilliant idea. Similarly, if your target market is too small or too spread out, then you may not ever be able to recover the cost in sales of bringing your product to market.
Figuring out whether your invention is profitable should be one of the first steps you take once you’ve been struck by the muse. Do market research to determine the price point at which you can reasonably expect to compete, the cost of manufacturing and developing your idea, plus the cost of getting patent protection. If, after a cold and honest look at the financials, you think there is real profit potential, then you know it’s worth going further with the invention.
Preliminary Patent Search: Before filing a patent, you need to be sure whether or not your invention is even eligible for patent protection. The first step in determining this is to do a preliminary patent search. You can access the patent database on the USPTO website or use Google Patents to look through the patent records for anything that would obviously preclude your eligibility for a patent.
You can further your own preliminary search simply by looking at what’s already out there. Go to stores that sell the kind of thing you’re looking to market, and check online stores as well. You can do this as part of your market research.
The goal here is just to see if there is anything obvious that would prevent you from getting a patent. There are millions of patents on file with the USPTO, and the vast majority of them are for inventions that were never marketed. A reliable search through all these records is a job for a professional. But, if you can rule the patent out yourself, you can save yourself the cost of hiring one.
Once you have satisfied yourself that there is nothing you can find indicating that someone else already holds a patent for your invention, you can proceed with getting a professional patent search from a qualified patent attorney. This will provide you with much more accurate information about the existing prior art, and the patentability of your claim.
Don’t assume that just because you didn’t turn up any prior art yourself, that you’re in the clear to file an application — there will always be relevant prior art, you just have to know what you’re doing to find it.
Prototyping: There is a very simple reason for why you want to start prototyping before you file a patent application. It is that, until you’ve actually tried to build your invention, you won’t really know how the think will work and how it will need to be put together.
The prototyping phase is one of the most creative parts of the design process. During prototyping, the true nature and possibilities of the inventions mechanics and functionality will come to light. This is all very important for patenting because patent claims are highly specific.
If you file for patent protection before you’ve gone through multiple iterations of prototypes, it’s very likely that the invention you described in your application will be substantially different from the final product you arrive at after functional testing. That means your invention will not be eligible for protection under the patent you filed, and, depending on the timing, you may actually wind up shooting yourself in the foot and missing out on your patenting window altogether. That’s a costly and avoidable mistake.
Only file for a patent — even a provisional application — after you have got the mechanics of your invention worked out.
Once you’ve gone through these stages, you’ll have a much better idea of whether or not you should (or even can) patent your invention, and whether you should pursue bringing it to market. Even if you find that your invention is not eligible for patent protection, you don’t have to give up your dreams of producing and selling it — many successful products on the market are not patented and aren’t even eligible for patent protection.
Patents are a valuable asset, but they are not strictly necessary for a product to be successful. Ultimately, the decision will rest with you.
Whatever decision you make, Cad Crowd is here to help you along the way. We offer a comprehensive range of services for entrepreneurs and inventors looking to bring their product to market. We offer rapid prototyping and manufacturing services, as well as USPTO patent search and patent application services. We also connect clients with the top-tier of CAD design and 3D modeling talent on the web. Let us know how we can serve you, and get a free quote today.