The decision to patent or not is a very important — and expensive — one. Being granted a patent means the U.S. government is affording you the exclusive right to exclude others from making, using or selling your work.
There are three types of patents:
- utility, which covers the creation of a new or improved and useful product, process or machine function;
- design, which protects ornamental design of a functional item; and
- plant, which covers invented or discovered and asexually reproduced a distinct and new variety of plant.
Utility patents are the most common type of patent. Some inventors choose to start with a “provisional” utility patent, which serves as a placeholder for a year before applying for the non-provisional utility patent that lasts 20 years. To obtain a utility patent, the USPTO will analyze whether:
- The invention is useful or other words provide a “utility” (does it serve a purpose?)
- The invention is “novel” (is it original?)
- The invention is “non-obvious” (do people know about it already?) and
- The invention must not have been disclosed to the public prior to the application for the patent (did you use reveal your product to the public later than 12 months before applying for a patent?)
Receiving the actual patent can be difficult. Once an application is filed, which means your invention is “patent pending,” the patent office may contest some of your claims. This could lead to a “patent prosecution” between your patent attorney and the USPTO examiner. The typical application takes between a year to five years from filing to granting with the latter including prosecution.
Search first, apply later
If you’re leaning towards applying for a patent then it’s probably worth it to conduct a patent search first to ensure that your product is “novel” or original. Although it’s possible to conduct searches on your own on sites such as Google Patents and the USPTO website, having a patent attorney conduct the search is advisable. A patent search can range from $500 to a few thousand. Most inventors need an attorney to assist with the utility application given its complexity. The cost can range from $3,000 (most basic type of product) all the way to $20,000 (very complex software).
There are many advantages of receiving a patent beyond having the exclusive right to your invention. A patent gives you standing to sue infringers in court, it provides respectability and trust to consumers, it makes it easier to license or sell your product, and it increases the overall value of your company. That said, given the high cost and lengthy process of obtaining a patent, a lot of thought needs to go into whether it’s worth it or not to patent your product.
It’s recommended to develop a business plan for your product before going through with the application process. As you develop your business plan you’ll be able to identify the competitive market and anticipate how many customers your invention could attract. These two factors, among others, are important in deciding whether it’s worth it to patent or not.
Wondering if you should patent your product? Send me an email and I can set up a free consultation with the newest member of our firm, an experienced patent attorney.