The Patent Process: What Startup Founders Should Know
Getting a patent is hard. These tips make it easier.
Whether you’re inventing a new product or process or simply improving upon an existing one, patent protection is a key step in commercializing your innovation.
The value of a patent in exchange for an inventor’s disclosure of how the invention (product, method, or process) works is controversial. Many have argued that the patent system falls short of its original purposes.
A patent gives the inventor a monopoly on the use of this particular invention for a limited period of time in exchange for public disclosure.
It’s easy to understand the importance of patents in the fields we typically think of as innovative. Pebble Technology, for example, was able to raise $20 million on Kickstarter for a watch that its designers had invented. The campaign-backers were willing to buy a pre-production product in large numbers, even though they had no personal experience with it, because they trusted that the company would only launch their product if it had been rigorously tested and proven to be both functional and safe.
What Is a Patent?
A patent is a certificate of exclusive right granted by the government to inventors “to make, use and sell their invention”.
A patent application is a request for this declaration. It’s almost always filed with a national or regional government. There are also, and often, international treaties. Abstract ideas don’t get patents, but the resultant products can be patented.
A patent is not the same as copyright or trademark protection: copyrights and trademarks protect particular forms of expression rather than new products or processes.
Patents are intended to give the owner of a new invention exclusive control over its possession, use and sale.
A patent system encourages innovation because it allows inventors to capture some of the value that they create.
An inventor applies for a patent by filing a patent application with a patent office. The application is examined and, if approved, granted. Once the patent is granted, the inventor has the right to prevent others from making, using or selling that invention for a limited period of time.
3 Types of Patents
- Utility patents: A utility patent is a patent for a specific and new functionality, that has never been available before. The primary purpose of a utility patent is to exclude others from making, using or selling the invention.
- Design patents: Design patents are a special form of patent for protecting the visual design of a product — not the underlying functionality. For example, Apple have lots of design patents for the look and feel of an iPhone.
- Plant patents: Plant patents are much like regular patents, except they only cover plant varieties. In other words, they allow the patent holder to control who can create or sell new seeds, but not other plants.
Some Key Tips You’ll Want to Follow
1. Confirm that your idea is eligible for a patent.
When you apply for a patent, the first thing that must be determined is whether or not your idea is eligible for protection. If it is, then it must be determined whether or not the invention meets the government’s written standards for patentability.
It’s easy to develop the impression that there is a rigorous, quantitative checklist of things any idea needs to include in order to be eligible for patent protection. Unfortunately, it just isn’t so. There is no magic formula or minimum threshold of features that your idea must meet before you can seek patent protection.
2. Document your invention from the earliest possible point in the process.
You need to be able to prove that you invented something before someone else did. That means you have to write about your conception of the idea as soon as you possibly can — before you file for a patent or publish anything about your idea — and then continue to document all aspects of creation and development of the product.
It’s just an idea right? You’ll figure it out later. No one else understands this stuff anyway. It will be obvious when I’m finished. I can get it patent with or without a prototype…And on and on we go. We loop through the same reasoning over and over again to come up with the exact same result: wait until it is too late to start documenting because starting at the beginning was not very well thought out.
Doing this enables you to claim the date of invention, if it has been made public (published or patented), as the starting point, and therefore preserves your rights.
Researchers are not always required to document their inventions. If you have built an invention that will be used for patenting, you may need to keep a log of your work. This can be an invaluable record if problems arise with licensing or laws. You may have to rely on this when filing for legal purposes.
3. Try to build a prototype.
Without a prototype, you’re basically just writing fiction. The patent office will view it that way.
Since the government offers a 20 year monopoly on this invention to the first company to patent it, you can be pretty sure some other company is probably working on an idea even as similar or even identical to yours. Making a prototype protects your idea from theft by giving you a solid basis for legal action.
This will also be useful later, when your patent application has made it through the scrutiny of the Patent Office (USPO), and you have to demonstrate your invention to potential licensees.
4. Patents are not cheap.
A patent is a legal instrument that grants to the patent holder exclusive rights to make, use and sell a particular device or process for up to 20 years. It’s not cheap or easy to get one. The total cost of getting a patent typically runs between $5,000 and $20,000.
The process of obtaining a patent is time-consuming and expensive. First, there is a large application fee, similar to the US immigration application. But money is just one of the many costs incurred by inventors. There is also the cost in time to complete all of the necessary paperwork and file it correctly.
5. If your idea is worth protecting, file for a provisional patent application.
The purpose of the provisional application is to put a “patent pending” label on your idea so as to deter others from stealing it. Because the provisional application lasts for only a year and is so cheap, it doesn’t pay to file one unless you believe that your idea has significant commercial value.
When it comes to patents, timing is everything. If you haven’t filed when the idea is still fresh in your mind and you haven’t yet shown it to anyone, you’ve lost the opportunity to receive a full patent. As a result of meeting with so many potential clients over the years, I’m often asked about the reasons people file for patents and what the process entails. When clients are contemplating whether they should file for a provisional patent application first, I advise them to ask themselves: If your idea is worth protecting?
The purpose of a provisional patent application is to establish an early priority date for patent claims, so that you have a better chance of getting a patent when you’re ready to file a non provisional application. A provisional application may be filed at any time prior to your first sale of the invention but must be filed within 1 year of the first public disclosure of your idea (which includes product or service.)
6. You’ll also need a patent not only in your country, but in several other countries as well.
If you want to sell your product in several countries then your design needs to be patentable in each country. Furthermore, those patents have to be enforceable. If you discover that the design of your product is not patentable then it’s likely that the entire project will fail. So you need to decide whether or not you can get a patent. To do so you need to speak with an intellectual property attorney experienced in patent law and who knows about design patents.
Recap:
- Confirm that your idea is eligible for a patent.
- Document your invention from the earliest possible point in the process.
- Try to build a prototype.
- Patents are not cheap.
- If your idea is worth protecting, file for a provisional patent application.
- You’ll also need a patent not only in your country, but in several other countries as well.
Thanks for reading :)
