Most inventors know that a healthy amount of paranoia goes a long way when dealing with an idea or invention. Ideas cannot be protected, so if you tell others they are free to use them unless they have signed an agreement saying they will pay you if they use your idea — good luck with that!
Inventions can be patented, but if you start telling others about your invention they could make and use your invention, which has immediate negative consequences for the patenting of the invention. Outside the United States many, if not most, countries follow an absolute novelty standard, which means you need a patent application on file before any public activity associated with the invention. Since March 16, 2013, the United States is also a first inventor to file jurisdiction. There are exceptions, but extraordinarily narrow exceptions. So narrow are the exceptions to first inventor to file prevails that they are hardly worth mentioning and not at all worth relying upon. So you really need to consider the law as rather black and white — file first before doing anything public.
Of course, the advice about filing first, which everyone should follow, begs the question about exactly how much paranoia is too much paranoia? After all, many inventors are going to need assistance from someone in order to bring their invention into being.
First, inventors need to know who can be trusted with your invention, and the short answer is not many people. This prompts many to attempt to secure a signed confidentiality agreement prior to disclosing their invention. By all means do try and obtain a confidentiality agreement if possible, we have free sample confidentiality agreements here on IPWatchdog.com that you can use at your discretion. Having said this, don’t be surprised if the other party does not want to sign. This is because prior to the signing of the confidentiality agreement no liability existed for the party receiving the information. After the signing of the agreement liability exists and there is no guarantee that anything of value has been conveyed in exchange, but liability has been created.
Your quest is finally complete. After hundreds of hours of effort, thousands of dollars, and innumerable worries of failure, you’ve finally succeeded. Your idea has become a reality, with riches and fame just around the corner. With the hard work done – envisioning, developing, and protecting your invention – you approach potential investors and buyers for capital to manufacture and sell your product. In the process, you discover one or more of the following:
the majority of people don’t understand the value of your invention or have no interest in it
some claim it is their idea
others try to steal it
those who see its potential want to pay a pittance for the product and leave you standing on the sidelines
Such is life for an inventor. From the years 2002 to 2012, more than 4.6 million patent applications were made and 2.2 million patents issued according to the U.S. Patent and Trademark Office. Yet, only a small proportion of the products covered by the issued patents become commercial successes.
I have a few ideas that I think could really be a success. I started researching “how to patent an idea” but have been bombarded with information. I have no clue where to start, and I have only a limited budget. What should be my first step?
This is a question I receive quite frequently. The patent process can be complex and knowing where to begin and how to responsibly pursue your inventions in a cost-responsible manner is not always easy, particularly for first time inventors.
The reality is that inventing and patenting does take financial resources and there is no patent attorney or patent agent who can help you if you have no funds. Limited funding will scare away many, but there are ways to move forward even with limited funding. Of course, the more limited your funding the more you will have to do on your own, which means you need to be prepared to do some reading, becoming as familiar as possible with the process and legal requirements. Thus, the best first step you can take is to familiarize yourself with the concepts, law and regulations. I strongly recommend starting your journey on our Inventing page. There is a collection of “reading assignments” there to lay the foundation on the basic information you will need to know. Each article will also contain links to other articles for more information on the topic.
Like anything in life worth doing, the path of an independent inventor from initial stage idea to making money can be challenging. If it were easy then everyone would be a rich inventor. Luckily for those who have the determination to pursue innovation as a business it is not easy enough for anyone to do, which means that there are opportunities available for those with ideas and determination. One of the keys to successfully making money as an inventor is understanding that those who are successful operate in a business responsible way, and this requires closely monitoring expenditure of funds. While you may want to rush out and build a prototype you need to be careful. There is nothing like the show and tell of a working prototype to lure investors, partners and licensing deals, but inventing is better viewed as a marathon than a 100 yard dash, and preserving capital is absolutely essential if you are going to be successful.
Doing a patent search to see if there is any realistic opportunity to move forward can also be a wise early stage step as well. Of course, having some kind of believe that what you have come up with will be feasible is quite important and should be done simultaneously with, or on the heels of, some kind of market analysis. After all, if there is no market opportunity it doesn’t make sense to move forward even if you can build it and the invention works perfectly.
President Lincoln was an independent inventor and patent owner.
Historically, innovation by individual inventors has driven our economy by creating new jobs and companies. Consider the names of some individual inventors who ultimately formed companies to exploit their ideas, but who initially manufactured nothing: Westinghouse (air brake), Ford (car), Gillette (razor), Hewlett-Packard (oscillation generator), Otis (elevator), Harley (motorcycle shock absorber), Colt (revolving gun), Goodrich (tires), Goodyear (synthetic rubber), Carrier (air treatment), Noyce (Intel), Carlson (Xerox), Eastman (laser printer camera), Land (Polaroid), Shockley (semiconductor), Kellogg (grain harvester), DuPont (gun powder), Nobel (explosives), the Wright brothers (aircraft), Owens (glass), Steinway (pianos), Bessemer (steel), Jacuzzi (hot tub), Smith & Wesson (firearm), Burroughs (calculator), Houdry (catalytic cracker), Marconi (wireless communication), Goodard (rocket), Diesel (internal combustion engine), Fermi (neutronic reactor), Disney (animation), Sperry (Gyroscope), Williams (helicopter), even Abraham Lincoln who was granted U.S. Patent No. 6,469. These are individuals who, in most cases, worked alone, without government or corporate support, yet, created not just new inventions, but whole new industries that employ millions of people today.
It can be argued, of course, that most of these inventors ultimately created manufacturing companies and that companies who merely buy patents from individual inventors contribute nothing. That seems to be much of what you are hearing. But what about small companies that are struggling to compete against corporate giants and need a strong patent system to level the playing field? As the inventor of the MRI scanning machine, Dr. Raymond Damadian, observed, it’s the small companies (not giants that ship their jobs to India and China) who provide the economic spark for new jobs in America.
A patent is a proprietary right granted by the Federal government to an inventor who files a patent application with the United States Patent Office. There are three types of patents available in the United States: (1) a utility patent, which covers the functional aspects of products and processes; (2) a design patent, which covers the ornamental design of useful objects; and (3) a plant patent, which covers a new variety of living plant. Each type of patent confers “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.
It is important to note, however, that patents do not protect ideas, but rather protect inventions and methods that exhibit patentable subject matter. In other words, a patent can only protect something that is considered patent eligible. Generally speaking, in the United States the view of what is patent eligible is quite broad. Machines, compounds and processes are all patent eligible. Even living organisms that have been genetically engineered in a laboratory are patent eligible (see Diamond v. Chakrabarty). Business methods are also patent eligible in the United States (see Bilski v. Kappos; Patenting Business Methods in the U.S.; and Business Methods: Concrete and Tangible Description is a Must). Software is likewise patent eligible (see Ultramercial, LLC v.Hulu, LLCand Software Patents). Even modified DNA is patent eligible (see DNA patenting). Thus, it is typically more enlightening to discuss what is not patent eligible: laws of nature, abstract ideas, naturally occurring phenomena, so-called naked business methods (i.e., not tethered to any kind of machine or apparatus), inventions only capable of an illegal purpose and atomic weapons. Chances are that whatever you have can be characterized so that patent eligibility is not a significant impediment to receiving a patent.
Frequently inventors will ask me if it is a good idea for them to prepare and file their own patent applications. Whenever I am asked such a question I suspect the person doing the asking already knows the answer, but is hoping against hope that they might find someone who will tell them what they really want to hear.
You have probably seen the commercial where the guy is sitting at his kitchen table and is on the phone with the surgeon who is telling him where to cut to take out his appendix while using a butter knife. The guy asks: “shouldn’t you be doing this?” Well, writing your own patent application is a little like taking out your own appendix. You won’t die if you screw a patent application, which is virtually inevitable, but you will not likely be pleased with the outcome. If you do achieve rights they will be far more narrow than necessary and you will have created an unnavigable prosecution history that will almost certainly make the claims you do have rather useless.
Having said this, it is not at all uncommon for inventors to want to attempt to draft and file patent applications on their own. The cost of hiring an attorney to draft a patent application can price some inventors out of the market, so they are left with the choice of doing nothing to pursue their invention and dreams or trying to do something on their own. Inventors who are going to attempt to draft their own patent applications need to go into the process with their eyes wide open, realize that the resulting patent application will be better if a patent attorney is involved in the drafting, and most importantly understand that there are a good number of things that you can and likely will do that will lead to a resulting right that is compromised or completely worthless.
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