This is the fourth in a planned 20-part series of articles on intellectual property protection. We will focus on patents, but we will have some limited discussion on trademarks and copyrights as well. We will also explore licensing and commercialization of products in later posts.
You have an idea, you’ve conducted a preliminary search on Google and the patent office (USPTO) website, and it appears your idea might be original. You have a written record of the idea, and you’ve even discussed it with some experts under an NDA. You know you have to move quickly, so you’re ready to call the attorney.
But, before you do, you might want to consider the following final things:
Maybe just keep it a secret . . .
What is the reason you are doing this? Now, 99 times out of 100 the answer is obvious – to protect yourself against those who would steal your idea and protect your technological and market advantage.
However, there are some rare times when you might not want to file a patent. Rather, you might want to keep something a trade secret. The idea here is simple: patents are disclosed to everyone. The secret formula you have protected through the patent office will be published for all to see, and could conceivably tempt your competitors to find ways around your idea. It would likely even give them clues as to how to go about their nefarious activities.
But, if you kept your idea a trade secret instead, your competitors may have no idea how you maintain your advantage. Also keep in mind that patents have limited lifespans (long - 20 years - but limited, nonetheless). At the end of the term, the protection the patent afforded goes away.
A trade secret, however, could be protected for as long as those who know about it keep their mouths shut.
And, before you dismiss the idea, consider that the formula for Coca Cola is a trade secret – and has been kept for over 125 years.
Like I said, 99 times out of 100, it’s best to get the patent, but that doesn’t mean one shouldn’t consider the trade secret route.
Is there a product here?
Let’s say you received a patent for a method of growing fingernails on apples. It may be innovative, and no one may have done it before, but is there a market for such a product?
If there is no market that you can see, perhaps there might be one in the future. You need to think to yourself, how far in the future are you thinking about? Remember, the life of a patent is 20 years.
Or, maybe you want the patent for other reasons – a feeling of accomplishment, for example, or to improve the perceived value of a company. Then, it might be worth it to you to spend the time and money to acquire the patent.
If a patent is going to cost you $10,000 or $50,000 or more, you need to consider whether it is worth the expense. Does the issuance of a patent provide more in its return to you than it will likely cost? Will it mean enough of a market share to make it worth your while? Or will it produce enough in gaining the confidence of potential customers to drive them to a purchase decision?
Once these considerations are dealt with, and the decision is made to apply for a patent, it’s time to scope out patent attorneys.
In part 5, we will begin to discuss the specifics of the patent process.