Inventing Strategy 101: Laying the Foundation for Business Success

By Gene Quinn
March 4, 2017

InventAll too often inventors and entrepreneurs spend too much time with their heads down, plow forward, and focusing only on the day to day operations associated with inventing. This is, after all, what inventors do and the inventor’s mindset. There is a problem to be solved and solved it must be! The problem this creates, however, is that is prevents inventors from looking at the bigger picture as they are inventing, which can lead to a catastrophe if the tunnel vision gets too severe.

Almost without fail, inventors know very well what they have invented and what they plan to do with their invention. But the typical inventor has a terrible sense of what their invention could be. I’ve seen this problem over and over again throughout my career. I’ve had many conversations with inventors who think I might not be understanding the invention because the first draft of the patent application seemed to miss the simplicity of the invention. But for me the job as patent attorneys is to not only try and merely protect the invention presented, but to work with the inventor to figure out the full glory of what the invention could be and what it could evolve into.

Always remember, a patent gives you no rights other than the right to exclude others. It is quite detrimental for inventor to narrowly focus on only what you have at the moment. Take a step back, thinking outside the box (see here and here), and imagine what it could become and what those who are unscrupulous copyists might do to get deceptively close without actually literally infringing upon your invention.


Do You Have a New Invention Idea?
CLICK HERE to Submit your Invention. 100% Confidential. No Obligation.

Of course, a patent application should certainly protect what the inventor is doing and what they want to do, but remember that in order to get a patent you do not have to produce a working prototype. You just need to be able to explain the invention with sufficient detail so that others skilled in the relevant technology area could both make and use the invention themselves without having to engage in undue experimentation. What is “undue experimentation” is a topic for another day, but suffice it to say that invariably what the “invention” is from a patent perspective is much broader than what an inventor thinks they have, and that is one critical reason (among many) why if you can afford to hire a patent attorney or patent agent you are always going to be better served by doing so and will wind up with much broader protection than doing it yourself.* You might also find it useful to work with an established inventor coach or design professionals who can help you work through your invention before you ever get to the point where you might consider hiring a patent professional.

I constantly preach to inventors and entrepreneurs that they need to approach inventing in a business responsible way. That means that you should have immediate, short-term, intermediate and long-term goals and plans in place. Treat your invention from day one as if it will be wildly successful, at least when you are dealing with your patent attorney, patent agent, inventor coach, design consultants or any other professionals you may decide to work with. Give consideration to what the next several phases of development will be if phase 1 turns out to be successful enough to warrant phase 2 and beyond. By doing this you will start to fill out those short-term, intermediate and long-term goals, which if they can be defined enough on paper can and should be integrated into your patent application. Always think about where you want to go and how you want to get there, as well as thinking about what the competition may want to do to elbow their way into your turf if you are successful. The business reality is if you are successful there will be others who want to get in on the action, that is simple economics 101. So treat your patent application as a master plan and an integral part of your business development.

It is also critical for inventors and entrepreneurs to have a strategy to succeed, which seems simple enough, but is typically anything but simple for the creative types that are so good at inventing. The goal is not to create an invention that is cool, the goal is not to get a patent, the goal is almost universally to make money. The cool invention and patent are a means to the end, not the end in and of themselves. Thomas Edison is famously said to have figured this lesson out early on when several of his revolutionary (for the time) inventions didn’t go anywhere. Edison is widely reported to have vowed never to invent again where there isn’t a market need. Excellent advice for all inventors to internalize. See Inventing to Solve Problems.

If you approach your patent activities appropriately you can lay the foundation of a business plan, at least insofar as the technology and technological advancement of your innovation is concerned. But like almost everything in life, there is a cost associated with succeeding. The cost is hard work to be sure, but there will also be significant financial requirements as well. While you may need to bootstrap your invention and business, as you move forward you will invariably need funding. From family and friends initially, to crowdsourcing (but be careful what you disclose), to Angel investors, and perhaps one day from Venture Capitalists.


Patent Filing Made Easy
The Invent + Patent System™ – An innovative approach to filing a patent
CLICK HERE for INFORMATION

Regardless of what you may have read or been told, investors love patents and a coherent patent strategy. In fact, it almost seems silly to have to say that in the year 2017. Shark Tank has become so widely popular in even popular culture that it is difficult to imagine that anyone who is serious about inventing hasn’t heard the Sharks grill inventors on whether they have anything proprietary, anything that can be protected, any patents pending or issued patents. Patents provide a competitive advantage, and those sophisticated in business know enough to look for and exploit whatever competitive advantage exists.

Patents are the 800 pound gorilla of competitive advantage, but realize if you are going to want and need significant sums of money from investors rarely does a single invention or patent command attention. There are always exceptions, but one patent leading to a road of riches is the exception. No one wants to invest significant funds into a company that has a one-and-done approach to innovation. You need to understand the road is long. Take a lesson from Apple, Inc. Innovate and then churn your innovation for all its worth, re-purposing the technology, expanding into products and services, constantly push the envelope and milk the golden goose for all its worth! Of course, when you are starting out you need to focus, and that is why the short-term, intermediate and long term plan and goals are so critically important. Investors will want to see you can focus, which can be difficult for some inventors and other truly gifted creators. They will also be interested in where the product or service can go in the future, so it is a delicate balance between vision and focus that will win the day.

In the next article in this series I will have some thoughts to keep in mind as you consider your patent strategy. For now let’s just say this: If you can get one patent you can get more, you can constantly loop back for more protection and you need to keep a vigilant eye on your patent portfolio to continue to look for opportunities. Invention is not a singular event, and neither is the business of innovation. Succeeding in the marketplace with your innovation is a journey!

 

For more information on invention basics please see:

_______________

* One caveat. If you are going to look for the lowest cost provider who is running some incredibly unbelievable Internet deal that no other patent professionals compete with then you are likely about to work with someone who is going to describe only what you show to them and not someone who will help you expand your invention to capture those critical alternatives, variations and embodiments that really give tremendous depth, scope and strength to a patent. See Why does it cost so much to prepare patent applications?

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 32 Comments comments. Join the discussion.

  1. angry dude March 4, 2017 12:12 pm

    Gene,

    Just cut the bs, please

    Tell us if we should file for patent “protection” in US if our inventions can be commercialized and still kept as trade secrets for some period of time (e.g. 3 years or longer) ?

  2. Gene Quinn March 4, 2017 3:40 pm

    Angry dude-

    Let’s start with the obvious: If you don’t file a patent application you will never get a patent. Now let’s progress to another truism: The patent laws change and evolve over time so the law that applies now will be quite different in many high tech areas by the time an examiner picks up an application to even examine it for the first time. Now let’s take another step forward: There is a huge difference between software and an ordinary gadget that most inventors will invent. That ordinary gadget is MUCH more likely to be protectable no matter how simple when compared to even the most complex software. Finally, if you think you can keep a trade secret for 3 years or longer you are fooling yourself. Countless companies and individuals have tried to keep trade secrets for lengthy periods convinced that they and only they could ever come up with the invention, and countless companies and individuals have been wrong.

    So why don’t you cut the BS. You think you know everything and you most certainly do not.

  3. angry dude March 4, 2017 4:39 pm

    Well, Gene,

    I don’t know everything and neither do you…

    But I know one thing for sure:
    Had I decided NOT to file for patent “protection” 14 years ago I could keep it a trade secret for quite some time.. maybe until I die
    I might or might not be successful in commercializing it, but then it would me my and only my fault

    But once you file for patent protection and your patent application or granted patent is published then you are at the mercy of our government.
    And for the past 10 years that government has showed no mercy towards independent inventors and small patent holders and I have absolutely no reason to believe that this situation can change for the better

    “Fool me once – shame on you, fool me twice – shame on me”

  4. Gene Quinn March 4, 2017 4:52 pm

    Angry dude-

    I certainly know FAR more than you do, and I have to say I really don’t appreciate your negativity on articles that are aimed at teaching newbies the basics. You are jaded, you have an invention that is unlike the VAST majority of independent inventors, and you run around thinking that what happened to you is the experience everyone has had.

    On the other hand are also a fairly typical inventor, with so much hubris it is hard to fathom. I’m sure you think you could keep a trade secret forever, but anyone who listens to you will be making an enormous mistake.

    As far as applications publishing, you could have opted out of publication but didn’t. Opting out of publication has been available for approximately 18 years, and inventors can and should probably do that particularly with respect to some types of inventions in some fields of invention. Google does it, so if it is good for Google it should be a consideration for inventors too.

    Of course, your comment here was just to be negative and tell others they shouldn’t file patent applications because they are instantly turning over their inventions. That is false. So god help anyone who listens to your advice.

  5. angry dude March 4, 2017 6:43 pm

    Gene,

    You misunderstood my point
    Inventions are different, of course, and what works in one field does not necessarily works in other fields
    However, this being said, I would advise all “newbies” with any technical inventions implemented in embedded software or silicon hardware to stay away from patent system and use trade secrets
    Even if your trade secret is stolen (e.g. software is decompiled and reverse-engineered) by some deep pocketed competitor it’s still much better than your patent being willfully infringed by all competitors out there – large and small.. because they can
    And yes, I had so much “hubris” that I presented my stuff at a major IEEE conference one week after filing (non-provisional) patent application – unbelievably stupid by today’s standards

  6. step back March 4, 2017 7:02 pm

    Angry,

    I agree with Gene.
    The pendulum swings.
    At this moment in history we are in an era where both the Left and the Right loath inventors, their creations and their claims to rights in those creations.

    But the pendulum, having swung one way, will reach its zenith and then turn to come back the other way.

    It may take a number of years. Somewhere along this path, America the sleeping giant will have another Sputnik moment. She will awaken to discover that the rest of the world (ROTW) has passed her by. The torch of Liberty and of Dreams that may come true was snuffed out. It is China who has the most protective patent law and the best inventions. No one in the USA bothers to try anymore because the Supreme Counsel of Fundamentalists (aka SCOTUS) have proclaimed a fatwa against inventors and against promotion of progress in science and the useful arts.

    Historians will write about this, about our retrograde time in history. They will ask, what were they thinking? They will read the Spanish Inquisition scripts of Alice, Mayo, Myriad and Bilski. They will assign to the thought leaders of our time, our Supreme and thus unquestionable SCOTeti, appropriate pejoratives. Luddites, romanticists, Salem witch hunters and the cause of America’s decline.

    All that may not help in the end.

    But perhaps, perhaps a younger generation is paying heed and beginning to form the resistance. Take heart.

    https://patentu.blogspot.com/2017/03/mirror-mirror-on-wall-we-ar-fairest-of.html

  7. step back March 4, 2017 7:12 pm

    About Neo-Luddism:
    https://en.wikipedia.org/wiki/Neo-Luddism

  8. angry dude March 4, 2017 7:14 pm

    step back @6

    pendulum swings and patents expire
    Now what ?
    Am I supposed to look though a crystal ball to see what the future holds ?
    Or throw the dice ?
    I’d rather go to casino for that – much better chances of winning and more fun too

  9. Gene Quinn March 5, 2017 3:51 pm

    Angry Dude @8-

    You are absolutely allowed to go to a casino instead of exercising prudent business judgment.

    As far as those who have software inventions, if they take your advice and avoid the patent system they will regret they day they ever followed your advice. There are MANY things that can be done even now. You continue to want to pretend that the patent path and trade secret path are alternatives, and that is simply a lie. For those who care to understand the law and procedures available to them it is absolutely possible to pursue a patent in the U.S. today and to still keep the underlying invention a trade secret up until a patent issues (if you can keep it secret that long).

    Your problem is you are jaded, you’ve made mistakes and you think you know all the tricks in the toolbox, but you don’t. The simple truth is that it is not as easy to get a software patent as it once was, but if you can get them now they will be extremely strong. Given that, and given that examiners in TC 3600 are starting to look for reasons to allow (which is new) following your advice would be a tragic mistake.

  10. Caesar Salazar March 5, 2017 4:29 pm

    I find this clip to provide good advice:

    https://www.youtube.com/watch?v=NMY9QUxDfwI

  11. Caesar Salazar March 5, 2017 4:35 pm

    angry dude,

    See my post @10 above.

  12. Anon March 5, 2017 5:01 pm

    Welcome back, Caesar.

  13. Gene Quinn March 5, 2017 5:33 pm

    Caesar-

    That is, indeed, VERY good advice. Thanks for sharing.

    -Gene

  14. angry dude March 5, 2017 5:43 pm

    Caesar Salazar @10

    Dude,

    your “advice” is as good as bs they pitch on shark tank

    to any real inventors that crap is disgusting and so is your advice

  15. angry dude March 5, 2017 6:09 pm

    Gene Quinn @9

    Gene,

    why don’t you ask real inventors in “software” space to see what they would prefer in today’s climate:

    a) to patent “secret juice” algorithms and other technical implementation details that make underlying technology work

    or

    b) to hide them e.g. in encrypted binaries to make reverse-engineering as hard and as expensive as possible

    It’s no brainer – most will pick option b

  16. step back March 5, 2017 7:49 pm

    @15 Angry:

    Problem is, for the really good inventions (the ones that the end user readily sees) once a competitor sees it in general, they can hire an engineering team to make it so without need for you specific code (your “secret” sauce).

    A good patent, unlike copyright and trade secret protection, protects the broader concept rather than just the one “secret” sauce way of doing it.

    Most consumers don’t care if they’re drinking Pepsi instead of Coke.

    https://www.pinterest.com/pin/449656344024326383/

  17. angry dude March 5, 2017 10:37 pm

    step back @16

    The problem with your statement is that patent on “broader” concept without being 100% enabled in the specification is legally invalid

    Remember that patent owned by Mark Cuban on self-balancing board discussed here in detail a while ago ?

    Nice broad concept but after reading it no one has any clue on how to actually make it work – cause it deliberately omits all the programming control logic aka “the secret juice”

    It’s “quid pro quo”, dude

    Either trade secret or patent – can’t have both on the same invention

    And I’m sure congress critters don’t even know what “quid pro quo” is…

    And btw hiring an engineering team to reverse-engineer embedded code (not even talking about silicon ASICs – those costs would be astronomical) is MUCH more $$$ than licensing or even buying patent

  18. Caesar Salazar March 5, 2017 11:01 pm

    angry dude @14,

    The point of the clip is that you can’t succeed with an idea alone, you have to be able to execute it. That’s what Gene is trying to say in this article.

  19. angry dude March 5, 2017 11:55 pm

    Caesar Salazar @18

    Dude,

    wtf are you talking about ?

    Idea is just an idea and (valid) Patent is a patent – it has detailed enabled specification disclosing something novel useful and unobviuos so others can reproduce invention after reading patent (well I actually put some real source code in mine to make infringer’s job even easier)

    If i’m unable to “execute” (aka sue the entire industry for *willful* patent infringement) then it’s my fault ?
    After what they did to US patent system and inventors (and contingency litigators) ?
    Do you guys still think that this is business as usual and you will continue to rake money prosecuting worthless patents for clueless inventors and startups alike ?
    Wake up

  20. Eric Berend March 6, 2017 12:06 am

    Gene, I generally agree with you in this discussion with ‘angry dude’ – to a point.

    That concept of pendulums and changing eras is all well and fine; but when you are an inventor, whose inventive concept occurs precisely when the winds of sea change make a hurricane against you; and. from your point of view, everything you did was what so-called “experts” advise: then, no amount of bootstrapping or critically directed motivation, as is represented in the video you praised; will produce the results, that are represented of the patent prosecution process in the U.S.; and purported to be its purpose, today. In that circumstance, it is easy to see why an inventor would feel swindled and defrauded by the whole process, and naturally, become very cynical.

    Inventors such as myself see his experience and the experience of other inventors treated with such official antagonism and condescension. We are taken aback by the utter extremity, of how different the outcomes of their participation in this process are, from the purposes for which it supposedly exists. Yet, an intelligent man does not make the mistake of assuming that his own experience describes the whole world.

    I would caution any inventor to make too much of an object of the patent or even the invention itself; as, its worth of application cannot be realized without market adoption. This is why I would largely agree with you: it is necessary and worthwhile to have an overall business plan.

    If the regard an inventor has for a given invention, is predicated partly upon its economic potential; then, expecting the invention alone to produce wealth, is like expecting a car’s engine to drive you down a road without any of the rest of the vehicle being present: incomplete, and impossible.

    At the same time, the enemies of patents and IP protection for inventors in the U.S. have succeeded to the point where, clearly, they are a 2000 pound ‘gorilla in the room’. It should not be surprising that an inventor bearing battle scars of the vicious exploits set up quite deliberately for just this purpose, would be very bitter about that pain – in fact, I am a bit surprised we don’t see several or a handful more here, with that attitude – and it is quite justified; even, if it does not serve more recent or naive inventors well.

    Thus, some of us are stuck in a wait-and-see holding pattern, as various judicial rulings gradually reveal the new lay of this legal landscape: will there be even some restoral of a legitimate and consistent basis of patent examination and prosecution? The very way certain the wording of patent claims is interpreted can become changed, so that what seemed appropriate or correct for a given patent application, then becomes vulnerable to shifting jurisprudence and corrupted bureaucratic fiat.

    Would you say that this reluctance to charge ahead with disclosure by those of us in wait-and-see mode, is foolishly unwarranted; considering everything that has come to light regarding illicit industrial influences, and the ‘K Street’ advantages of those interests which have relentlessly attacked patents, in the U.S.?

    Because, more than just an example of bitter outrage potentially undermining the value of better-founded, expert advice – there is now, without a doubt, a cohort of those inventors whose caution has caused them to delay disclosure, in light of an apparent need to discover more about the actual risks involved, before going forward.

  21. angry dude March 6, 2017 12:35 am

    Eric Berend @20

    “expecting the invention alone to produce wealth”

    If I go to trouble of researching certain high tech area for years and finally invent a solution to a very difficult and long-standing problem, and then decide to patent it, and spend time and money on patent prosecution…
    and see my solution adopted by the industry..
    then I expect at least some type of appreciation
    I would be ok if they bought my patent for a fraction of what they paid for junk nortel and motorola porrfolios (per patent) – yes, “junk” is the right word to describe those
    But they want to give you nothing, zero, zilch
    But wait, there is even more…

    They will spend lots and lots of $$$ to prevent you, the inventor, from making any money on your patent
    You hear me right
    There is a criminal corporate (mostly SV-based) and government conspiracy in the US to teach those pesky inventors and startups alike to not even think about enforcing their patents (and if you can’t enforce it then why file it in the first place?)
    OK, good, I learned my lesson:
    trade secrets and copyright from now on

  22. Night Writer March 6, 2017 6:35 am

    @18 Caesar: The point of the clip is that you can’t succeed with an idea alone,

    This is the type of witch garbage that is floated by the anti-patent judicial activist. The reason this is garbage is because we have 102/103/112 that are supposed to be used. But, the “idea” here to forgot about patent law and create a witch test where we don’t see if it is enabled, but rather skip to the conclusion that the claims recite an “idea” (witch), with a test based on how the fact finder feels about the claim.

  23. Night Writer March 6, 2017 8:25 am

    OT, but
    https://www.nytimes.com/2017/03/06/us/politics/supreme-court-repeat-sex-offenders.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=second-column-region&region=top-news&WT.nav=top-news

    This is similar to what we are talking about the SCOTUS just making up their own findings of fact based.

  24. Anon2 March 6, 2017 9:27 am

    angry dude @21

    What you expect is “at least some type of appreciation”

    What you deserve, is to have your property rights, in the invention of your creation, to be enshrined, protected, and enforced, and not denied, violated, and ignored.

    Most of those here discussing this matter all agree with your, and every individual’s fundamental property rights in the inventions of their creation. It is a sad state of affairs that we who all oppose the left regressive erosion of individual rights, freedom, and capitalism, are bickering amongst each other as to how to weather the storm of regression, collectivism, Statism, and socialism.

  25. Anon March 6, 2017 10:25 am

    Anon2,

    Please add the attacks from the Right to your list, at least as far as the Right symbolizes those entities far too eager to minimize the strength of patents when those patents are of the nature of other people’s innovations (disruptive innovation in particular), and those entities would be more than happy to compete on other grounds (typically grounds based on established market position, but also grounds based on Trade Secrets, which is simply more amenable to their machinations (think Guild mentality).

  26. angry dude March 6, 2017 10:35 am

    Anon2 @24

    “Some type of appreciation” means that I do not have a patent on consumer hi-tech product like IPhone – even Apple does not – it’s an agglomeration of hundreds of distinct inventions and components and no individual or small company can make it

    But if industry uses some component that I invented then I want to be paid reasonable royalty for that (or at least sell my patent for what they used to sell just a few years back – 500-700K)
    Unfortunately the only way to determine what “reasonable” royalty is to have injunctions restored but they won’t do it – too late anyway, too much potential aggravation for tech industry with huge *willfull* patent infringement liability problems
    But right now there are no patent royalties at all, just aggravation and legal expenses for those of us who still foolishly participate in this game on their own risk and buck, not being a super-duper rich SV VC backed startup or huge multinational
    BTW it has nothing to do with socialism or collectivism, and has everything to do with teachings of Carl Marx “rich get richer and poor stay poor regardless”

  27. Anon2 March 6, 2017 11:09 am

    Anon @ 25

    “Right” and “Left” are ill-defined and awkward labels, used and misused alike… insofar as some self-proclaimed (or otherwise labeled) of the Right strive to minimize, erode, or otherwise abrogate and/or violate individual rights, they are (whether they know it or not) acting as the regressive left. It matters not whether one advocates the erosion of rights for the benefit of some, or many in the public or simply for the shortsighted apparent benefit of oneself… it stands in opposition to individual rights, freedom, and capitalism. To call such a position as on the Right, IMHO, falls into the trap of the koolaid of the left which equates the “extreme” Right with a form of Fascism and Statism (which are actually socialism). In reality the so called “far” Right and the leftists are close relatives, enemies of Classical Liberalism, and the right “extreme” Right, which are laissez-faire capitalism and protection of individual rights… IMHO

  28. Anon March 6, 2017 1:50 pm

    Anon2,

    I can accept your interpretation.

    However, and as perhaps error prone as it may be, the labels of Left and Right, as I have set them forth, are understood more readily than your (more correct) version.

    It may be difficult to achieve understanding with the different audiences using just the correct nomenclature.

    Suffice it say, that more than one ideology is aligned against strong patent rights for different reasons.

  29. jbavis March 6, 2017 6:32 pm

    Gene @ 9:

    “The simple truth is that it is not as easy to get a software patent as it once was, but if you can get them now they will be extremely strong. ”

    Help, now I am extremely confused. From what I’ve gathered from this site, inventors are up against eBay, and that it costs $20k to file an IPR, and that large corporations have time and $money on their side to Appeal and delay – how are patents “extremely strong”?

    I suppose recently issued patents would be considered high-quality because of all the extra checks they’ve come up against and had to defeat (e.g. Alice) – but from a property rights perspective, I equate “strong” with “enforceable” and I don’t see how today patents in the hands of inventors are enforceable at all.

  30. angry dude March 6, 2017 11:10 pm

    jbavis @29

    Patents on anything “software” or “algorithm” related are not enforceable today,
    at least not by independent inventors or small startups.
    Gene is on patent prosecution side, not patent litigation.
    I guess one can call a patent “strong” if invention is published in e.g. IEEE journal or major conference proceeding and discussed in professional circles with no “prior art” found and cited against it
    Does not help…

  31. Night Writer March 7, 2017 8:41 am

    @29 jbavis: another smoke blower in our midst. I think everyone knows what Gene was talking about jbavis. I think you did too. But, cute misdirection to muddle things. Such a clever boy/girl.

  32. Caesar Salazar March 7, 2017 3:41 pm

    Night Writer @31,

    https://www.youtube.com/watch?v=l8o5fxnDUjs

Post a Comment

Respectfully add to the discussion.

Name *
Email *
Website