Do you want to patent a product that makes money? Patenting a product is not difficult; it just takes time and money. If your idea is eligible to be patented and you work with a competent attorney, typically you can get the U.S. Patent and Trademark Office to issue you at least one claim in your patent application.
Patenting a product that has value in the marketplace requires a different skillset.
In this article, learn crucial information that will help you patent a product that makes money.
To qualify for a utility patent, an idea must be:
– Subject matter eligible. Utility patents are for processes, machines, articles of manufacture, and compositions of matter. Some software inventions fail the subject matter eligibility test. What is and what is not “subject matter eligible” is a continuous conversation in patent law.
- New.
- Useful.
- Not obvious.
What Is A Patent?
The U.S. Patent and Trademark Office defines a patent as a “grant of a property right.” Specifically, a patent gives you the right to “exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States.
Typically, this right lasts for 20 years. However, there are ways of extending the life of a patent on a product nearly indefinitely.
There are three kinds of patents.
- A utility patent is based on functionality and includes “any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof.”
- A design patent is based on the way a product looks.
- A plant patent may be granted to “anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.”
It is possible to patent software.
The Legal Versus The Business Value Of Patenting Products
Most of the information you can find online about patenting products is written from the legal perspective. My perspective is different because I’m an inventor, not a patent attorney. Over the decades I have spent earning a living from my creativity, I have received more than 20 patents.
Specifically, I am the named inventor on patents related to the manufacturing of a rotating label. In 2011, I sold my portfolio of patents for millions of dollars.
I understand the process of patenting a product from a business perspective extremely well. The tips and strategies below are not legal advice — they are based on my perspective as an entrepreneur.
When you learn about patents, it is very important to consider where that information is coming from. At the end of the day, the legal profession makes money from patents regardless of whether their clients – inventors — are ever actually successful in business.
The Difference Between Provisional Patent Applications And Non-Provisional Patent Applications
In 1995, the USPTO began offering inventors the option of filing a provisional patent application (PPA) for utility inventions to make starting the patenting process more affordable. Provisional patent applications have fewer requirements than non-provisional patent applications. For example, you are not required to include any formal claims — which define the invention — in your provisional patent application, meaning you can write it yourself using plain language. In a PPA, you aren’t required to include formal drawings, either.
After you file a PPA with the USPTO, you are entitled to describe your product as “patent pending” for the next 12 months. This is a great opportunity to test your product for market demand.
After 12 months, you have the option of converting your PPA into a non-provisional patent application, abandoning it, or, potentially, refiling it.
No one at the USPTO will read your provisional patent application. Think of filing a PPA as securing your spot in line.
As an inventor, I am a huge fan of provisional patent applications for many reasons.
There is no provisional patent application for design patents.
How Much Does Patenting A Product Cost?
If you qualify as a micro-entity, it costs just $60 to file a provisional patent application with the USPTO.
You can use inexpensive software like inventRight’s SmartIP to help you draft a better PPA. SmartIP was co-created with Gene Quinn, the influential patent attorney who founded IPWatchdog.com.
The cost of filing a non-provisional patent application and responding to the objections of patent examiners can easily cost upwards of $15,000-$25,000. The majority of my patents cost $25,000.
I regularly hear from inventors who have spent more than $25,000 to get their patent issued.
Do Patents Protect Inventors?
Most people believe that getting a patent will stop someone from stealing their invention — that it will “protect” them. Before I sued one of the largest toy companies in the world for patent infringement in 2003, I believed that’s how patents work, too. The reality is much more complicated.
Getting a patent may keep some competitors honest, but it won’t stop everyone from trying to work around you. A patent only gives you the right to sue for patent infringement — a process that has become very expensive and time-consuming. When you sue for patent infringement, there are no guarantees, and the party with fewer resources is at a disadvantage.
For inventors and startups, litigation is not a good business model. There are much better ways of using patents to make money.
Don’t Make The Mistake Of Rushing To Patent A Product
Typically, people start patenting process out of fear. They are afraid that their idea will be stolen from them if they don’t patent it. They believe they need a patent in order to make money from their product, so they contact a patent attorney for help.
But getting a patent is not a good first step to making money from an invention, and here’s why: The vast majority of patents aren’t profitable. Something like 97 percent of patents never make enough money to even cover the cost of getting the patent in the first place.
If you want to make money from your product, you need to look at your patent as a selling tool, not a tool for “protecting” you.
The Benefits Of Provisional Patent Applications (PPAs)
There are many benefits of filing a provisional patent application before you commit to filing a non-provisional patent application.
- The cost to file a provisional patent application with the USPTO as a micro-entity is very low. You won’t break the bank drafting and filing a PPA.
- You can write and file it yourself.
- Legal jargon isn’t necessary. When you read the claims in a patent, you will notice they are written in a very specific way.
- Filing a PPA allows you to determine if your product idea has market potential for one year while describing your invention as “patent pending.”
- You can combine multiple PPAs filed during that first year into one non-provisional patent application filing.
Questions To Answer Before Patenting A Product
- Have I created a product that someone else wants and will purchase?
Why bother patenting a product no one wants to purchase? Instead of spending a lot of money on a patent right away, try to determine if your idea is something that others will want to buy. There are different ways of accomplishing this. Here are a couple things to ask yourself.
- Is my idea new?
Use Google to do a shopping search and an image search find out. Don’t be afraid of finding your product idea. Keep looking! You must see if there’s something similar that’s already out there.
If you find something similar, you have two options: Alter your idea or come up with a new idea entirely.
Then, you need to search for “prior art,” which is evidence your invention is not new.
- What is the prior art?
Henry Patent Law Firm defines prior art as “any evidence that your invention was already publicly known or available in whole or part before your patent application’s effective filing date.”
Patents are one form of prior art. You can search for similar patents at USPTO.gov or through Google Patents. You’ll want to spend some time learning how to search for prior patents first, as there is a bit of a learning curve. (The USPTO offers free classes on its website.)
The point of doing a prior art search is to determine whether your idea is indeed new before proceeding with your patent application. Prior art is not limited to patents. So please, be thorough as you search.
Tips For Writing A Better Provisional Patent Application
Write your provisional patent application this.
- Problem. Explain the problem so that anyone who reads your application can understand. This helps you set the stage for using your PPA as a selling tool.
- Solution. Explain how your idea is a solution in a way that anyone can understand. Try to tell a good story. Everyone else who ends up reading your patent — including your patent examiner, potential licensees, and even investors — will appreciate this.
- Manufacturing and materials. Try to include the most efficient way of manufacturing your idea. If you don’t know, hire someone who does. Make sure they sign a non-disclosure agreement that includes work-for-hire language so that anything they contribute, you own. (On a patent application, every inventor must be listed.) This keeps the question of who owns the intellectual property extremely clear.
- Workarounds and variations. Try to steal your product idea from yourself by coming up with multiple variations. How would someone else try to work around your product to achieve the same benefit?
- Include numerous line drawings. These don’t need to be formal patent drawings. Drawings provide an excellent roadmap for others to quickly understand your invention. A drawing is worth at least 1,000 words.
Note: If you plan to patent your invention in other countries, you should include one claim in your provisional patent application. This allows you to file with the PCT (Patent Cooperation Treaty) and designate the other countries you are seeking protection in. I recommend having a patent attorney or patent agent write this.
After you file a provisional patent application, it’s time to test the market for demand. The best way of doing this is with a sell sheet. Depending on what you learn, you may decide to convert your provisional patent application into a non-provisional patent application.
Most inventors file patent applications before they know whether anyone else wants their product and will pay them for it. This is a big mistake.
You can negotiate to have other people — such as your licensee — pay for your patent.
Information To Provide Your Patent Attorney Or Patent Agent With
The type of patent attorney or patent agent you need will depend on the scope and complexity of your product.
Once I identify the right person to assist me, I provide them with the following information to help me draft and file a non-provisional patent application.
- Prototypes I have built to show what works and what doesn’t.
- Sales and marketing material.
- My point of difference compared to similar products on the market and any other inventions.
- My business objective.
- Know-how regarding manufacturing processes and materials.
- Variations of my invention to stop people from working around me.
Supplying your patent attorney or patent agent with the right information is extremely important. They need it to do good work! In fact, their work will only be as good as the quality of the information you provide.
Get Free Help Patenting Your Product
The USPTO has a program to assist inventors who do not have the financial means to patent their products. The Patent Pro Bono Program is a “nationwide network of independently operated regional programs that match volunteer patent professionals with financially under-resourced inventors and small businesses for the purpose of securing patent protection.”
It is possible for inventors to draft and file their own non-provisional patent application. This is what’s known as “pro se.” However, I do not recommend this.
