Ideas are a dime a dozen. New ones are generated every day, all day long. But, the person who takes the first step to protect that idea by filing a patent application is usually the one who gets to lay claim to the idea. Unlike a trademark or copyright, in patent law, the first to file, wins. So, if you sit on your idea, and someone comes along and thinks of the same idea (or simply steals yours), and that person files a patent application first, you’ve just lost out on your potentially lucrative business idea. You can avoid that by filing a patent application.
A patent is a right to exclusively make, use and sell an invention for a limited period of time. Exactly what is patented is set out in what are called “claims”. The inventor makes claims about what is unique about the invention.
In order to secure a patent, the invention has to be industrially applicable, usable and new. Securing patent protection for your invention prevents others from making, using or selling the patented invention for twenty years from the date of filing the application. It generally takes, on average, two to three years to secure patent approval. Patent protection is one of the most expensive intellectual property protections to secure, mainly because of the extensive pre-work that must be done prior to filing the application.
First, patent law is a highly specialized area of the law, and attorneys who want to practice in this area must be additionally licensed as a member of the federal patent bar. So, when seeking an attorney for help with your patent application, you will need one of these specialized attorneys.
Second, an extensive review of existing patents (pending and approved) must be undertaken prior to beginning to write your patent application to make sure that none of your “Claims” infringe on the “Claims” of another patented invention. Even if the entire invention is different than any other invention, if there is one Claim in your invention that infringes on a Claim in another invention, the patent application can (and likely will) be denied.
So, the best way to avoid that is to file a “provisional patent application”, which gets you a priority filing date, since if a patent is ultimately awarded, it is effective as of the date of filing your provisional application. It’s also the cheapest, fastest way to file a patent application. Once filed, you not only secure your priority filing date, but you also then have 12 months to perfect your product, begin marketing it, tweaking it and making any upgrades or design changes that are needed before having to file a “non-provisional”, full (and more expensive) patent application. Obviously, this is valuable time to assess whether your product is viable, and worth spending the money on full protection.
And the best part is that during this 12 month “provisional” period, you can market the product as “patent pending”, which puts the world on notice of your priority claim. This also tells the world that anyone who dares to think about copying your idea risks being sued for patent infringement. It’s a great way to get the protection you need while perfecting your product.
As long as you file your “non-provisional” patent application prior to the end of the 12 month provisional period, your priority filing date remains the date on which the provisional application was filed. However, if you fail to file within that 12 month period, then you will lose that earlier, priority filing date. So, if you ultimately decide that your idea is not viable, you can simply abandon the process by not filing the non-provisional application within the 12 month period, and save yourself a lot of money of the full application process.
So, there you have it – trademark, copyright, trade secret and patent protection in a nutshell. It’s a safe bet that at some point in your business life-cycle, you are going to need to consider one or more of these protections.
Hi Traci,
I like your advice. How much does a “provisional patent” application cost? And roughly how much can I expect to spend for the entire application process from provisional to approval?
Thanks,
Jerry
Thanks Jerry. Fees depend. The filing fees with the US Patent and Trademark Office vary according to how many pages the application has. Also the filing fees for the non-provisional application vary as well according to how many “claims” are made. Here is the link to the fee schedule on the USPTO.gov website. Attorney fees also vary by area of the country and the particular attorney, so it’s difficult to give you costs. http://www.uspto.gov/web/offices/ac/qs/ope/fee2009september15.htm#patapp
While I would consider myself a fairly savvy small business owner, the patent issue was one I always wondered about. It’s great to finally have a clear vision of the process, and the work / reasons behind a patent. Thanks!
Thanks Nicole! Patents can be a confusing area for business owners. I’m glad I was able to shed some light on the subject for you.
Traci – how does this differ between ideas and inventions? Are the processes different?
I have been pretty involved with the process with my inventing, but curious how it may apply to a service related biz?
Thanks – Rachel
Rachel, are you talking about creative ideas, such as stories, writings, songs, etc? Or business ideas like methods of doing business? The creative ideas are protected by copyright while the business ideas can be protected under a business methods patent, which are difficult to obtain, but available nonetheless.