Wednesday, August 13, 2008

To Patent or Not To Patent?

Do I need a patent? It's not always necessary to pay for a patent. You have to honestly evaluate your idea or product and decide how protectable it is. In reality, anyone who creates something new is going to be copied. Isn't that the highest form of flattery? Yes and no. It's not when their taking cash out of your retirement fund!

The number one rule with patents is, patents are only as enforceable as you have a bank roll to enforce them. Also, you have to know that someone is producing your product. You will be the police for your patent(s).

In the case of our gloves, we've determined that we do need patent protection. Think about it, we've honed in on making a measurement on the human hand intellectual property as it relates to gloves. That means, once we're fully patent protected, no one can make a glove that fits a child's hand without paying us a royalty. Think about that for a second (I know I am!). That's huge! So yes, we needed to go get us a patent.

The flip side is with a gadget, of some kind. I'm not belittling gadgets, I love them, you just have to look at where you want to spend your cash. Do you want to pay big bucks and big time getting a patent, only to be knocked off anyway, and now you have no money left to go after the people who knocked you up, I mean off! Laughing! Only a woman will really find that funny. In many cases, it pays to be the first to get your product to market, then take it to the biggest guy likely to knock you off, and see if you can license (I'll explain this in my next post) your idea to them. In many cases, they will pay you a royalty for everyone they sell, and you can just collect the checks. You were first, they bought your position, now you can get to the next thing.

Another piece of info that seems to be floating around out there, is that you need to write down your idea on a plain piece of paper, seal it in an envelope, and mail it to yourself. When you get it, don't open it. Save it for if you ever need to prove this was you idea, the postmark will be legal tender. In fact, what you really need to do, is file a provisional patent application with the United States Patent and Trade Mark Office ( and this will give you a full year to test drive your idea with the proper protection. You need to file your full patent application within one year of the filing date of the provisional, but this is the safer way to go. It costs $105. What happens is, the USPTO logs your idea, doesn't even look at it, and gives you a registration number. If someone tries to steal it, you can reference your registration number, at this time they will look at the idea, and determine that you had rights first. This is also a gray area, because is someone filed a provisional before you, there would be no way to know. In that case, should you find each other in the marketplace, the one who filed first, wins.

So to recap:

  • Determine if you need a patent

  • If you want to test drive your product, apply for a provisional patent.

  • If you don't need a patent, get to creating, prototyping, testing, and producing your product.

  • If you do need a patent, find a good attorney. I don't advise doing this on your own unless you've done it before, or know someone who has.

  • My attorney is Barbara Luther, The Luther Law Firm, 480-344-7745, I highly recommend her!

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