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Do I Need a Patent?

Dolbeer "Logging Engine" Patent 256,553Image via Wikipedia

What is a Patent?
A patent is a document which allows you to prevent anyone else from making your invention. There are different kinds of patents: plant patents, design patents, provisional patents and utility patents. The patents most people are familiar with are utility patents. These patents cover new, useful and non-obvious products and methods.

Not all Patents are Created Equal
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The value of a patent depends upon many factors. A "broad" patent covers not only the invention, but a wide swath of alternatives as well. A "narrow" patent may be easily designed around by changing one or two aspects of the invention. The breadth of a patent depends upon several factors: the novelty of the invention, the similarity of items already made public, the cooperation of the government patent examiner and of course, the skill of the patent attorney. A great patent attorney is not going to be able to make a silk purse out of a sow's ear, but a bad patent attorney can certainly work that magic in reverse.

Patent Pros.
A good patent provides you a monopoly in your marketplace. Items with a high markup are especially well-suited for patent protection. Without a patent, the market would simply drive the price of the product down to just above the cost of manufacture. Even while the patent is in the "pending" stage, you can sell your invention, while your competitors are kept at bay wondering what your patent may or may not cover. You can also sell or license your patent rights to a third party in exchange for a lump sum and/or a royalty stream. Patents can last for up to 20 years from the filing date.

Patent Cons.
Patents are expensive. Even patents on simple machines can end up costing $9,000 or more over the course of the application process. The application process can be lengthy, often taking three years or more. It can be very expensive to defend your patent. Unless you can find an attorney to defend your patent on a contingent fee basis, you may have to spend several hundred thousand dollars to have your day in court. As the infringer faces similar costs, patent infringement cases are far less likely to go all the way to a jury than many other types of disputes.

Do You Need a Patent?
This is a question only you can answer. A patent attorney answers this question from the perspective of whether the patent attorney could use an additional $9,000. You answer the question from the perspective of knowing your business better than anyone else. Where patent attorneys can help is in offering advice (often at no cost) to guide you through the questions you need to ask yourself. What kind of annualized profit can I expect with a patent? How many years, if ever, before the patent pays for itself? Are there non-infringing alternatives competing, or likely to compete in the market-space? Will my product be obsolete before the patent issues? Will less expensive "trade secret" protection suffice?

Get the Facts.
Once you have the facts, the question boils down to a business decision, unique to your company. A patent by itself is not going to generate income. You still need a great invention and marketing plan. Many times patenting an invention is not the right answer. Get the facts before your invention falls into the pubic domain and you lose your right to patent your invention at all. 

Brett Trout

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