Do I Need a Patent?

If you are a first time innovator who has an idea, such as a consumer product, a question frequently asked is “Do I need a patent”?

To some individuals starting out, the investment in a patent can seem substantial. Perhaps you have an idea for a new consumer product, but are not sure if the project will be a success, and so you are reluctant to spend the money for a patent.

The decision to start any business has to be based on careful thinking and analysis. However, if the decision is made to move forward then a patent may be a useful business tool. In addition, going through the patent process may give the inventor valuable insights.

For example, the patent process usually starts with a search. The purpose of the search is to identify patents filed by other innovators which teach the same the same or similar idea. Finding similar patents is important because a) another patent may be filed that will block your idea from going to the market place and b) another patent may too close to your idea and may block you from getting a patent.

So before going forward with the patent application, it is important to answer the two questions, will I run afoul of someone else’s patent and is my idea patentable? Negative answers to these questions may stop the project in its tracks. But even if the search results are negative and you are disappointed, it is better to know from the start than spend years creating a business only to find out you are violating someone else’s patent.

What if the search results are positive? Should I get a patent?

If the search results are positive, congratulations! In all likelihood you have an original idea.

To patent or not depends on several factors. First, how do you plan to benefit from your patent? Second, what is the product life cycle, i.e., how long will the product be on the market? How will you be able to find potential infringers? The following paragraphs are of course generalizations and you should check with a patent attorney or agent before coming to any particular conclusions.

Many inventors want to license their idea to a third party manufacturer, i.e., grant the manufacturer the right to use their invention in return for royalties. In this case, having a patent is absolutely essential, because without the patent, there is no legal right to convey the invention to the manufacturer. If your plan is to license the invention, having a patent is the way to do it.

If you plan to have the invention made and sell the product yourself, a patent is also a good idea, especially if you have limited resources. Large companies have well developed business and distribution networks and can afford to produce large amounts of product quickly. Having a patent gives you some protection from a company with more resources.

Patents may not be as good an idea if the project life cycle is short. If you think the product will only be on the market for a couple of years then a utility patent may not issue in this time frame while selling your product. There may not be an opportunity to enforce the patent during a short life cycle. If the product is simple, a design patent may be the best type of protection, since they issue from the patent office in less than a year.

Finally your invention must be of the type where finding potential infringers is possible. For example, if you are a dentist and have a new method of filling cavities, it may be difficult to find other dentists that are using your method, because few people would be able to observe the dentist and how he does his work. It is important to be able to identify the use of your invention.

There are many factors, in addition to these that may play into the decision about filing a patent. As always, the decision to file a patent application should be made in consultation with an experienced professional patent attorney or agent.

Gearhart Law LLC
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