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Beyond inventing
Topics: inventing, patents, patenting, invention
Posted by travisfam Mon Apr 9, 2007 17:49:44 PDT
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0 responses 0 comments For those who missed watching last year's FOX show, “American Inventor,” be prepared for round two. Because of their success with the show’s first season, FOX has now begun the screening process for finding the next mega-million dollar idea.  Even PBS is getting into the act with their new series due out later this month called "Everyday Edisons."

As a patent attorney, I have seen an increased interest by clients and sometimes just the curious about ideas they are considering patenting.  What I always appreciate about inventors - especially individual inventors - is their zeal and dedication to their inventions. It is hard not to get excited right along with them.  However, what sometimes seems patentable isn’t and there is a lot of confusion about the patenting process and even its necessity for starting a busines.

The following are some points to consider:

• Have more than an idea: Most people do not understand that a patent application is a description of how to enable someone who is familiar with the technology to actually make the product.  So often, I have inventors with patentable inventions but there are gaps in their descriptions that would get their application rejected without more disclosures.
 
• Be sure you have an invention: More often than not, those with ideas to fill a market need are not "inventive" because someone has already come up with the same idea.  Typically, inventors will have performed a cursory search on the internet, but failed to search prior patents or other publications which can preclude them from getting a patent.  This includes any publication anywhere in the world.  Still, just because something is not patentable does not mean you cannot make the product (provided it does not infringe someone else’s patent) it just means you now cannot exclude others from making a patented product.
 
• File inventions as soon as possible: When my office is engaged to defend or prosecute an infringement action, the first facts we look at are dates of patent filing.  Although the United States is unique in that we are the only country to base inventorship on the first to conceive of the idea, this is often difficult to prove.  This leaves the filing date of the application as the critical date for enforcing or defending an infringement action and can make or break a case.

• Be prepared to invest money: Clients seem amazed at how much it costs to prosecute a patent application in addition to the government fees.  Yet, patenting costs are nothing compared to the cost for creating and marketing a product and, the tremendous amount of time you will invest in promoting it. A client of ours is now spending close to two hundred thousand dollars for development, marketing, and manufacturing of a simple, consumer product. Further, and compared to infringement actions, patent costs are a fraction of the overall costs necessary to make an idea profitable.

• Be patient: The patenting process is slow. The United States Patent Office is overwhelmed and, if current trends continue, patentees can expect to wait two to five years to hear back from the Patent Office after they file their application.  This might change based on recent policies and structural changes being implemented but, for the time being, it is the status quo.

• Be prepared to invest time: If you are not fortunate enough to have an investor to speed your product along, you will be doing a lot of work creating and promoting your product.  The patenting process is only a small adjunct to the larger process of entrepreneurship which is all-consuming.  A recent phone call from an inventor for whom I prepared an application for over four years ago and patented two years ago, has just now established the right connections for the potential to make his product lucrative.  This was only possible because of the leverage his patent gave him over his competition but none of it came without a lot of “sweat equity.”

• Keep inventing: Somewhere out there someone is complaining that, "someone should do something about something."  Your past ideas might not be patentable or marketable, but keep your ears open as there are always new problems to be solved.

If you are discouraged, you shouldn’t be.  Most of the above obstacles have been in place since our economic system was set in motion.  However, those who understand the patenting and business process, have realistic expectations, and have the right attitude, are the ones who eventually succeed – even if they don’t make it to the next round.

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