All 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.
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.
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:
- How J.E.M. and Chakrabarty Make the Case for DABUS
- Fit to Drive: Three Inspiring Office Action Responses from the USPTO’s Art Unit 3668
- Design Patents 101: Understanding Utility Patents’ Lesser-Known Cousin
- Starting the Patent Process on a Limited Budget
- Artificial Intelligence Will Help to Solve the USPTO’s Patent Quality Problem
- What to Know About Drafting Patent Claims
- Beyond the Slice and Dice: Turning Your Idea into an Invention
- Why Engineering Companies Get into IP Trouble: Five Tips to Mitigate the Risks
- Congress Must Work to Understand the Language of Inventors
- Your Developers Could Be Publicly Disclosing Source Code By Using Third-Party Code Repositories
- Seven Steps to Success in Business or Entrepreneurship
- Mitigating ‘Justified Paranoia’ via Provisional Patent Applications
- Justified Paranoia: Patenting and the Delicate Dance Between Confidentiality and Investment
- Anatomy of a Valuable Patent: Building on the Structural Uniqueness of an Invention
- How Can I Sell an Idea for Profit? Unlocking the Idea-Invention Dichotomy
- Keeping a Good Invention Notebook Still Makes Good Sense
- Understanding Substitutes: Is your invention desirable to consumers?
- Advice for Young Inventors
- Enhance Innovations: Ideation, Design and Licensing for Inventors
- FTC wins preliminary injunction against operators of World Patent Marketing
- Should I File a Patent Application Before Licensing the Invention?
- Turning Your Idea into an Invention
- Inventing Strategy 101: Laying the Foundation for Business Success
- Inventing 101: Protecting Your Invention When You Need Help
- How do you know if you have a licensable product?
- Inventing to Solve Problems
- An Introduction to Patent Claims
- There is no such thing as a provisional patent
- First to File Means File First! The Risk of Not Immediately Filing a Patent Application
- Understanding Obviousness: John Deere and the Basics
- Describing an Invention in a Patent Application
- When should you do a Patent Search?
- Plausibly estimating the market for your invention
- Every invention starts with an idea
- Patent Drafting: Identifying the Patentable Feature
- The Importance of Keeping an Expansive View of the Invention
- Patent Application Drafting: Ambiguity and Assumptions are the Enemy
- Getting Your Invention to Market: Licensing vs. Manufacturing
- Obtaining Exclusive Rights for Your Invention in the United States
- Completely Describe Your Invention in a Patent Application
- The Successful Inventor: Patenting Improvements
- Protecting Ideas: Can Ideas Be Protected or Patented?
- When is an Invention Obvious?
- How to Find Valuable Invention Services
- A Better Mouse Trap: Patents and the Road to Riches
- I Can’t Find Prior Art for My Invention
- Keep Your Money In Your Wallet Until Proof of Concept
- Invention to Patent: Pitfalls, Perils and Process
- Turn Your Idea into an Invention with a Good Description
- Financially Responsible Inventing: Prototype Basics
* 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?