Increasingly on the Internet invention advertising is taking an odd and seemingly inexplicable turn toward advising independent inventors to not seek patent protection, which is undeniably bad advice that will undoubtedly cause much disappointment and heart break for those who actually follow it. But why is it that you are starting to see more and more advertisements that say it is unnecessary to get a patent and you should simply forego that step?
The reason you are seeing more and more bad advice aimed at steering inventors away from the patent system is likely because effective September 15, 2008, new rules of practice went into effect at the Patent Office that require a patent attorney or patent agent to be 100% in charge of the creation of any documents filed at the United States Patent Office. This is important because the way invention promotion companies would typically operate would be to work with inventors and do most if not all of the drafting of the patent application. They would then send the application to a patent attorney who would finalize the document and file the document. In many situations inventors would pay between $8,000 and $12,000 for the filing of a patent application, with as little as $200 of that fee going to the patent attorney or patent agent. This obviously was fraudulent because inventors would anticipate that most, if not all, of the fee they paid went to the patent attorney or agent, and that was not the case. So inventors would think they had competent representation by a trained professional and all they were receiving was less than 1 hour of patent attorney or agent time.
The only way that you can obtain any form of protection for your invention in the absence of a patent is to get individuals who learn about your invention to sign a confidentiality agreement. The agreement is a contract that says they will not disclose your invention as long as it remains a secret and not generally known. Typically these contracts will end the secrecy obligation once your invention is no longer kept confidential, so at best they provide only limited protection for your invention during the early days when you have not disclosed information publicly and you have not sold your invention.
Trade secrets can provide protection, but only so long as the invention is secret and once you start distributing your invention the secret is lost. If you sell your invention or otherwise distribute your invention you have lost all trade secret rights that are associated with your invention because others will be able to see your invention, take it apart, learn about it and copy it if they want. So for anyone to suggest that trade secrets meaningfully protect inventions is misleading. Trade secrets protect information, not inventions, so do not expect that you will be able to maintain any exclusive rights to your invention once you put it into the stream of commerce if all you have is a trade secret. To be sure, trade secrets may be helpful to hide what I will call exotic information, such as knowledge that a certain brand of component works best, but trade secrets are not going to prevent anyone from copying and distributing your invention once your invention is on the market.
There is really no satisfying way to protect an invention in the absence of a patent. Moreover, many inventors want to obtain a patent and then try and negotiate either a sale of the patent or a licensing deal whereby the inventor obtains royalty payments moving forward. You can sell your patent, or even your patent application, or license your patent or your patent application because there is an identifiable asset that has been created. There is simply no way that you are going to be able to sell or license your invention without having at a minimum filed a patent application. You simply do not have an asset that anyone is going to be willing to pay for if you do not have some kind of exclusive right or at least the prospect of an exclusive right. People and companies just do not pay for ideas, no matter how good the idea may seem to you. You will receive payment, if at all, for the transfer or rights or the transfer of any potential rights that may well develop into exclusive rights. Absent a patent application you have nothing to offer in a negotiation.
Worse still, if you decide not to at least file a patent application and you start offering your invention for sale or you put together brochures to explain your invention in hopes of obtaining interest, you are creating a situation where you soon will lose all rights to file a patent application. So the decision to not pursue a patent application can and does prevent inventors from going back and changing their mind and ultimately filing a patent application. You need to be extremely careful with your invention. Not every invention is one that a patent is appropriate for because patents are expensive, but if you think you have an invention that could be lucrative you are really crazy not to file a patent application.
Patents do not always need to be expensive, at least not at the time you chose to file an application. Since 1995 the US Patent Office has allowed for the filing of what are called provisional patent applications. A provisional patent application is much less expensive to file because there are no required formalitites that need to be observed, other than including at least one drawing of some kind and including a cover sheet, which is a form that the USPTO provides on its website. Provisional patent applications currently cost $110 for independent inventors and small businesses, and if you want help from an attorney you can probably find an attorney who would be willing to draft a solid invention disclosure that you can file as a provisional patent application for on the order of $1,500 to $2,500, which is a far cry from the $7,000 to $10,000 most patent attorneys would want to file a nonprovisional patent application. So you can start the patent process in a cost conscious way.
The benefit of a provisional patent application is that you get 12 months within which to decide whether it still makes sense to pursue a patent. If the answer is no then you are out the $1,500 to $2,500 you paid the patent attorney, or the $110 you paid the Patent Office if you created your own provisional patent application. Many times after 12 months people will realize there just wasn’t enough interest to move forward. Many times inventors will realize there is great interest and they need to move forward. The point is that you don’t have to spend a fortune to be able to get a “patent pending” and on your way to exclusive rights. If the invention goes no where you have reserved funds for the next attempt. Yes, the next attempt. Inventors are creative people and rarely will you have only one invention, but if you waste all your money right out of the block on one invention then you might not have the resources to pursue the next one. Being conservative, setting a budget and moving forward is prudent business and the way that inventors succeed.
So the moral of the story is be careful. Those who tell you that you don’t need a patent and should start the commercialization process without at least filing a patent application probably have their own agenda; an agenda that likely does not match up with what is in your best interests.