Understanding Substitutes: Is your invention desirable to consumers?

By Gene Quinn
March 31, 2018

Understanding Substitutes: Is your invention desirable to consumers?Frequently one of the most challenging aspects of inventing is determining what need a particular invention fills. This is not to suggest that inventors do not know what their invention does, why they created the invention in the first place, or how it might be used by a potential consumer. Instead, one of the biggest issues I see is inventors not having a good grasp of why an invention might be desirable from the viewpoint of consumers who might be perfectly willing to use various substitutes.

I can’t even begin to count the number of times I’ve heard inventors say that there is nothing available on the market that is at all like what they have created. Invariably, the stronger and more absolute the statement the more likely what has been created is not that different from things that are widely available. That does not always mean that the invention is not worth pursuing, but specific consideration must be given to whether a consumer will be willing to pay money to purchase the invention.

For example, let’s say Issac Inventor has invented a new and improved shovel. What makes the shovel unique is it includes an integrated radio, which allows the user to listen to music, talk radio or sports as they dig away.

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The first question Issac really should ask himself is how many people might be willing to buy such a shovel, because if the number of people who might be willing to purchase a shovel with integrated radio is too small then Issac should move on to his next invention. Determining the size of the market goes beyond the scope of this article. Instead let’s focus on the issue of substitutes.

I’ve had many inventors like Issac come to me for assistance, and all too frequently they will believe that they will corner the market on shovels because who would ever want to buy an ordinary shovel when you could purchase a shovel with an integrated radio? To that I always point out that there are are always going to be a subset of people who will choose to stick with cheaper, inferior solutions that they deem to be perfectly workable substitutes for spending the money necessary to acquire the latest gadget or technology. In this case, even if someone is very interested in listening to music while they work they could simply use an ordinary shovel and then have a radio along with them, or perhaps listen on a smartphone with a headset.

No one would ever do that, Issac protests! Yes, Issac, plenty of people are going to do exactly that. Allow me to explain.

Just today a friend of mine who knew I was in the market for a new laptop sent me a link to a fantastic deal on late 2016 Apple laptops. He is an Apple expert, and he said these are the best deals he’s ever seen on machines like this. The laptops had 2TB of storage and were completely decked out with every bell and whistle you can imagine. If I bought it the laptop would be better than my desktop, and while I do need a newer laptop I don’t need something that extravagant. And for better or for worse I’ve personally decided with all the business travel I do I don’t want to have a laptop that is my everyday machine even though I could hook up monitors to it when I’m at my desk. Of course I don’t plan on dropping and breaking my laptop, but frequent business travel is hard on the body and even harder on electronics. So even though a computer is my primary tool, I’v decided against this fantastic deal because it is just more than I need and I feel it would be wasteful spending.

Inventors, if they are honest, will have stories of their own just like my Apple laptop story. Practically everyone does unless they had the great fortune to be born with a 9 figure trust fund. This doesn’t mean that the Apple laptop my friend told me about isn’t fantastic, and it isn’t to suggest that Issac’s shovel with integrated radio isn’t equally fantastic. But at some point it is absolutely necessary to consider whether enough people will both want what you have invented and view it as economical enough in light of other available solutions.

Financial considerations are critically important for inventors to consider. Obviously, the goal of inventing is to make money, so it has to be economically feasible. More importantly, however, inventors must remember that the economic feasibility equation must factor in all the time and effort spent during the innovation process, as well as all the money invested.

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For example, most inventors are going to file a patent application, at least a provisional patent application. Filing a provisional patent application is going to cost a certain amount of money even if you choose to create and file the application yourself. Likewise, if you ultimately obtain a patent there will be government fees along the way that must be paid, and attorneys fees if you choose not to pursue the goal of obtaining a patent solo. That money creates a sunk cost invested into the project that will need to be returned before any profits are realized. This means that in order for an invention to be a sensible endeavor the inventor must have some reasonable basis to believe consumers will be willing to pay a premium for the invention over and above other non-patented solutions that are available.

With all of this in mind I always encourage inventors to consider whether what they have come up with is an improvement significant enough to warrant someone who has the prior art unit to think to themselves that they really need to invest in the improvement. So using the example above, if you own a shovel already, is Issac’s shovel with integrated radio enough of an improvement to have you race out to buy it? Obviously not everyone who owns a shovel would need to buy it to make the invention worth pursuing, but shovel owners already form the market, so you would want at least a meaningful portion of that already existing market to be intrigued enough by the advance to say yes, I need that improved version.

If Issac is being honest, his invention of a shovel with integrated radio might not be enough of an improvement over an ordinary shovel and separate radio to warrant moving forward. But what if Irene Inventor invented a fully automated shovel? Rather than engaging in back breaking digging, just lay the unit on the ground and it automatically digs the hole. Well, if that actually worked, Irene’s invention might be something quite interesting, with or without the integrated radio.

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 4 Comments comments.

  1. Benny April 1, 2018 5:24 am

    First, I would refer mythical Isaac to patent applications CN2046593091 and US20060292997.
    Trying ti fill a market demand is pushing and shoving with everyone else. Even if you got the patent, there will likely be competitors with similar, but just slightly different, devices. To get a hold on the market, you need to create demand where none exists, and the genius here is marketing, not invention. There is a rich history of successful (but usually short-lived) toys to prove that point.

  2. Anon April 1, 2018 7:53 am

    Benny,

    The “integrated radio” is an “easy example,” albeit one that serves a limited purpose. Even I would not pick that nit with Gene.

    However, I would note that a blanket “move on” may not be the advise that I would give to a client.

    For example, patents may very well be worth pursing that will NOT end up (directly) protecting actual devices put into the market (by the inventor), but instead may serve as creating a block or buffer zone around other products that be being pursued.

    It’s a nuance above the 101 nature of this article, but it is a distinction worth making.

  3. Benny April 1, 2018 7:59 am

    Anon,
    It was an exercise in prior art searching. I didn’t spend more than 3 minutes on that one.

  4. Anon April 1, 2018 8:56 am

    Your exercise in prior art searching misses the point (even if – or especially since – you spent less than three minutes on that one) .

    The example was NOT one of “was this example actually novel or non-obvious.” The example was “easy” in order to focus on a different aspect.

    You clearly have been distracted by the “shiney” of the easy.

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