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Should You Really Get a Patent? 5 Questions To Ask Yourself


Much has been written on the new patent laws, but before even concerning yourself with them, ask yourself whether you need a patent in the first place, and whether getting one will be worth the significant time, cost, and effort.

Most inventors think they've come up with the next big thing, that everyone will want to steal it, and that a patent is their ultimate salvation and prize. They mail themselves postmarked letters, record phone calls, hire attorneys to draft disclosure agreements, and generally act paranoid, never stopping to think about whether it's really worth it.

So should you go after the treasured folder with the gold seal? These questions are a good place to start:

1. Is your invention really likely to be patentable and/or worth protecting? If it's a revolutionary drug or major new technology, probably. If it's a new widget with limited, niche market potential, maybe not. Invest a little time and money in speaking with a good patent lawyer (not your general practice/business attorney -- you must deal with one who specializes in intellectual property). He will give you solid guidance, even if that is to suggest that you might not want to proceed. If you're serious and determined, also invest in a proper patent search; the money you spend may save you many times that amount later.

A great option to consider is a provisional patent application, which is a comparatively inexpensive way to put your application on record and buy yourself a year to think, sell, or test further before jumping all-in.

2. Do you have the time and money? Patents are expensive (of course that's relative), and take years to get. If there are hiccups along the way -- and there almost always are -- you'll pour more money and time into it, and may still come up with nothing. Are you prepared for what it might cost, and have you considered if it will still be worth it in the two to three years it typically takes to get? Oh, and all of this is for a U.S. patent only; if you're thinking globally, you'd better have a big checkbook and a lot of patience.

3. Do you want to make your invention public long before it is patented? In applying for a patent you publicly disclose your invention, and in doing so potentially give other companies ideas, time to take competitive action, and other benefits of having lots of advanced notice. That's why some companies often choose not to file -- ironically, if you don't apply, your idea will stay safer in the early stages. And in the long run, the time and money you save may benefit you more than the document.

4. Do the potential benefits justify the cost? Many inventors can't think past "my idea is great, I need a patent." But will you sell enough? Is anyone really likely to steal the idea? Will the patent have significant marketing value? Will your product even be relevant by the time the patent comes through and well beyond? Will the patent have real value as a saleable or licensable asset? I have several patents and patents-pending, and when I ask myself these questions in honest retrospect, there are some I shouldn't have pursued.

5. Do you have the willingness and resources to defend it? This is a biggie. It's been said that "a patent is only as valuable as your ability to defend it." There are always companies that will take their chances knocking off products or seeing how far they can push it, counting on the fact that a small company can't afford to take a fight very far. If your invention is worth millions and you have the money, of course you will go to the mat. But if it's not, are you ready to spend tens of thousands or more to protect it?

My own patent attorney is probably not going to appreciate this, but the fact is, many small business people who apply for patents probably would be better off not bothering. As with most things in business, making the right choice begins with setting aside your emotional impulses and trying to view the situation rationally.

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(Photo by Skooba Design)