Inventors are intelligent and inquisitive. That’s a good thing. That’s how your invention came about in the first place.
Be careful, though, of information overload which leads to confusion or, worse, poor decisions based on misinformation from a careless mentor, unscrupulous invention help company, or “social media expert.”
Too much misinformation exists around patents. If you spend any time browsing social media, you’ll hear self-proclaimed experts say you must get a patent, while others say you must not get a patent. I guess it makes everyone feel more expert to take an absolute stance in the face of opposition. Perhaps social media expertise doesn’t require a full understanding of strategic patent processes and technology commercialization.
Don’t get me started on the crowd that advocates to “get a trade secret instead of a patent!” While this sounds like a reasonable statement, it almost never is reasonable or even logical. Utility patents, trade secrets, design patents, and other forms of intellectual property are each very unique and only apply to specific types of technology or intellectual assets. Rarely will patentable subject matter also qualify as trade secrets. And even when it is an option, you have to effectively make decisions on day one that would implicate your entire business model going forward, before you even have a business model to begin with. Not to mention the fact that what might otherwise be protected as a trade secret rarely is treated with the necessary formalities to actually qualify as a trade secret. In short, this sounds like a sophisticated strategy, but is almost always an ineffective misapplication of generic IP principles.
Let me help give you a position that focuses on good strategy more than social media hype. If you’re a novice inventor, you can use this information to help guide how you process all the “expert advice” you’re consuming from people who probably can’t document their success or validate their advice.
Patents fit squarely into the domain of minimizing risks to your technology and business. They help you, if at all, maintain freedom to operate your business within a competitive industry. If you’re interested, here’s a related blog post about minimizing risk while you validate your technology and market on your journey to product sales.
Does everyone need to get a patent? No, they don’t, especially if your “invention” isn’t really an invention that can be patented (it doesn’t qualify as proper subject matter). However, since many inventors don’t know the difference between patentable and unpatentable subject matter, and sometimes the boundaries between these shift due to technological reasons or government regulations or judicial case law, the cautious approach is to seek “patent pending” status before you do anything that would potentially jeopardize your opportunity to get “patent pending” status in the future.
1 – Before you begin sharing your idea without confidentiality
2 – Before you begin selling or offering your invention for sale
3 – Each time you make a significant improvement to your design
4 – Before you talk with industry experts or potential licensing deals
5 – Before approaching manufacturers, even for early prototypes
6 – Before pitching your business to an investor
7 – Before sharing your invention in a business competition
8 – After you finalize the design for commercialization
What’s the harm in skipping the initial “patent pending” stage of your invention. In a very lawyerly voice, I can tell you with great certainty, “It depends.” While this is true, I know it isn’t helpful. So here’s the number one reason you should consider getting “patent pending” status on your invention as a top priority (as long as it is financially feasible–see below).
There are a number of actions that you, as the inventor, and do that will make you lose virtually all of your patent rights. That’s right, even though you invented it, you can destroy your own chances of protecting it with patents. The instant you disclose your invention, sell your invention, or even try to sell your invention (among other activities), you create a “bar” against filing for patent protection in almost every country outside the United States. So with the click of a button on social media or the casual discussion with a potential buyer (or even a manufacturer, in some cases), you cut off your right to apply for patents in foreign countries. The United States is more lenient and grants you a 12-month grace period, but you can easily create a complex web of bar events that would be hard to trace and track throughout the life of your invention, if it rises to the level of success where someone will want to infringe it and then claim you voluntarily gave up your patent rights through careless actions when you thought you were just performing some preliminary investigations into the technology and marketability of your invention.
If this sounds like a draconian penalty, it is. That’s why it can be critical to apply for a patent, even using the provisional patent application process, to get “patent pending” status before you do anything to jeopardize your invention, your ability to protect your invention, your ability to get investors for your invention, or your ability to show the value of exclusivity to potential licensee or future acquirers. The stakes are simply too high to be casual and careless with the invention you dreamed up an brought to life.
Although getting “patent pending” status is critical in many situations, the amount of time and money you dedicate to getting “patent pending” status should be proportional to the amount of certainty (evidence, not opinion) you have in the business model that will commercialize your invention. For most independent inventors, that means you should spend very little up front to get “patent pending” status for your invention.
So how do you get “patent pending” status without spending a lot of money? We think this topic is so important and, yet, is unfortunately inaccessible to many independent inventors that we created an online workshop (including an absolutely free intro that reviews how to tell if your invention is patentable subject matter).
Then we realized that we could make the workshop and other resources available to more inventors through a fun 30-day challenge: The ICON-30 Challenge to help inventors get “patent pending” status on their own invention in 30 days or less!
Like the workshop, the ICON-30 Challenge has a free version to get inventors started, and other challenge levels to give inventors more resources at a fraction of the cost of hiring an attorney to write your provisional patent application for you. If this fits into your sweet spot as part of your innovation journey, please sign up and join us on our way to help thousands of independent inventors get “patent pending” status.
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Legal Disclaimer: This general information does not establish a legal relationship with any attorneys or law firm without a written and signed legal representation engagement agreement.
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