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Anyone who has had an idea has worried it’s going to be stolen from them. I remember exactly how fearful I felt when I had my big idea nearly 25 years ago. If you’re in the same boat now, breathe.
Because I was so afraid, I rushed to contact a patent attorney who quickly filed two patents on my behalf. Later, I discovered those filings were worthless. Talk about an expensive lesson! Those patents cost me tens of thousands of dollars. Undeterred, I continued to file. Today, I have more than 20 patents to my name — the majority of which someone else paid for. Having the honor of defending my portfolio against one of the world’s largest toy companies taught me even more about what patents are really worth. (After three long years, Legos and I settled two weeks before trial.) I tell you all of that to say this — I’ve learned a lot about what to do and what not to do when it comes to patents.
Related: A 5-Step Reality Check for Inventors
There are going to be a lot of people who tell you the first thing you should do is file a patent — your friends,family, people who don’t have any actual experience bringing products to market, your patent attorney.
Filing a patent is not the first thing you should do.
About 97 percent of all patents never generate enough revenue to pay for themselves. Really let that sink in. It’s actually pretty obvious you might want to buck convention on this one. Here’s how.
1. Determine if your idea is marketable.
If it truly is, then file a provisional patent application. Provisional patent applications are an absolutely wonderful tool. The United States Patent and Trademark Office began offering inventors the option to file a provisional application with the explicit intent of reducing risk. With a little bit of knowledge, you can file your own application for just $65. After you submit a provisional application, you’re able to describe your invention as patent-pending for the next 12 months — a period you should make the most of by continuing to determine whether or not the idea really is marketable.
If you hurry like I did and file a non-provisional patent application right away, I can almost guarantee you’ll miss something. And as a result, you’ll have to file another application.
The key to writing strong intellectual property — intellectual property that actually has value — is to become an expert first. Not an expert on intellectual property in general, but on your concept. You need that year of patent protection status to do more critical research.
Let’s back up a bit. Prior to filing a provisional application, do the following to study the market.
2. Conduct a prior art search.
I like Google Patents. Look for patents that are similar to your idea. Some may even be same as your idea. This will seem very daunting at first. Don’t be intimidated! There are classes you can take taught by the United States Patent and Trademark Office.
Force yourself to keep reading. If a patent is confuses you, don’t blame yourself. There’s a good chance it may confuse a judge and a jury as well, which doesn’t bode well for the strength of that patent. The best patents are very clearly written and, relatively speaking, easy to understand.
As you dig through the prior art, adopt the mindset of a detective. I look at the drawings first to quickly determine how relevant the patent in question is. How has the category evolved over time? Who has claimed what? What’s missing? Your job is to uncover the history of innovation as it pertains to the category. When you do, you enable yourself to close in on the uniqueness of your invention, which is critical to writing a strong patent.
You will find similar inventions. Don’t panic! Comb through what you find very carefully. When I came up with the idea of a rotating label many years ago, I eventually discovered I wasn’t the first. The idea had already been patented some 60 years ago. At first I was devastated. But when I reflected, I thought about how the idea wasn’t on the market. Why not? As I read the prior art closely, I realized how much had been left out. For example, no references to methods of manufacturing were made. I was able to file after all. I’ve been receiving passive income, aka royalties, on an idea I didn’t even come up with for the past 20 years as a result.
3. Search Google images for similar ideas.
Take your time. What else is out there? Is your invention unique? It doesn’t need to be radically, hugely different; small improvements can be patented.
If, after searching thoroughly, you conclude you have indeed invented something unique, it’s time to file a provisional patent application. Include as many variations as you can think of. In other words, cut potential competitors off at the pass by trying to ‘steal’ the idea from yourself. My other big piece of advice is to include a lot of drawings. They can be simple and line-drawn. Drawings are worth a thousand words.
After you file, start contacting companies you think might be interested in licensing the idea from you. Your ultimate goal is to get feedback. Go to trade shows. Get quotes from contract manufacturers. Remember, most patented innovations never make it to market because they aren’t wanted and/or can’t be made. Will people pay you for the idea? You need to know before you commit to filing a non-provisional.
After discovering more about the category and the marketability of your invention, you may need to file another provisional patent application. No problem: You can combine multiple applications later.
After you become an expert, if you’re even more convinced the idea is marketable and still want to go forward with it, then you should hire a patent attorney to help you file a non-provisional. I write my own provisional patent applications, but I’ve never even considered writing my own patents. If you’re short on capital, check in with the USPTO about its Patent Pro Bono Program.
The information you gather while your idea is patent-pending will be priceless to your attorney. Maybe you’ve developed a prototype. You at least know about manufacturing methods. As a result, your attorney will be able to draft a non-provisional application that truly has value. Please do not expect your patent attorney to do this type of background research. That’s not his job.
If you have a big idea, you will need to create a wall of intellectual property to effectively defend it. Have a strategy in place before you dive in, like I did.
In summary, do not rush out and file a patent out of fear. Do your homework so you can craft a well thought out plan. Not merely to obtain a patent, which is easy enough to do, but to profit from your creativity — which I’m assuming is what you want to do. Being able to file a provisional first is such an incredible advantage. Make the most of it. If and when you decide to file a non-provisional, your patent will be so much stronger for it.