Patent Your Idea

We've all heard horror stories about tinkerers who came up with a million-dollar brainstorm, only to have their idea stolen. Here's how to patent your idea so you can keep that from happening to you!
By Marian Dawson
September/October 1981
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A big idea may lead to a big payoff, but first you need to patent your idea.
PHOTO: FOTOLIA/SERGEJ KHACKIMULLIN


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There are several ways to protect a potentially profitable invention. The first and easily the least expensive is simple: just don't tell anyone about it. Such "trade secrets" have been kept by some businesses for hundreds of years ...but their usefulness is limited for the most part to inventions that require specific, measured ingredients coupled with a special process by which those components are rendered into a usable product.

Copyrighting, another method of protecting your work, also has its limitations. After all, it's not possible to copyright an idea ...only the written words, melodies, pictures, or other forms through which the idea is expressed. Such protection is also given for a limited period of time, and involves payment of a fee. (Free information and forms are available from the Register of Copyrights, Library of Congress)

A third, but usually both time-consuming and expensive, way of guarding your brainchild against theft is by patent. The Inventor Resources page at the U.S. Patent and Trademark Office hosts a number of documents that explain what patents are and how to patent your idea. 

In short, a patent is a grant to an inventor, given by the United States, which allows him or her—for a limited time—to exclude others from making, using, or selling the patent-holder's product in this country. The actual grant is a printed document in which the invention is fully described and the rights of the inventor are defined. Once a person gets a patent, he or she has the opportunity to profit by making, using, or selling the invention in a protected market or by charging other people for that privilege.

There are two main types of patents. The first, which is given for "new and useful processes, machines, manufactures, and compositions of matter or plants," lasts for 17 years from the time that it's granted. The second sort is granted for "new, original, and ornamental designs" (those that affect the shape of an item without reference to its inner mechanism or to the process by which the item was made), and can run for 3 1/2, 7, or 14 years, the time being decided by the inventor.

However, it may take several years and thousands of dollars just to obtain a patent ...and not every good invention is patentable or even worth patenting. Most, in fact, aren't, either because somebody has already patented a similar or identical design, or because the invention cannot be successfully commercialized. Since the point of patenting is to allow the originator of an invention to get a financial return on it, the potential profits must outstrip the considerable costs involved if a patent is to represent a worthwhile "investment."

All of this means that you must make a careful appraisal of your "better mousetrap" before you decide to try to obtain a patent. And that will mean doing some homework.

Compare and Contrast

To begin, you'll need to see how your invention compares with other already available tools for doing the same job. Put in some intensive study time at the local library, in stores, and with any people you may know who are involved in industries related to your invention. Ask about existing products or processes, examine such things directly where possible, and tuck away the information you glean. (Do not, however, talk about your own invention. As you've probably suspected, such publicity can actually prevent you from getting a patent. Public use and sale of an invention or disclosure in print more than one year before patent application is filed will bar your rights to this protection.)

Then, once you're relatively sure your brainchild isn't duplicated by something already on the market, sit down quietly and give your invention a hard, honest appraisal. Is it practical? Does it provide a service that people will pay for? If you can honestly answer yes to both questions, go ahead with your pursuit of a patent. If the answer is no, however, don't waste your time and money trying to get one.

Of course, it's sometimes difficult to be objective when evaluating an invention that might well have resulted from years of work and much expense, so it's fortunate that there are organizations and institutions that can help you make an honest appraisal. One such outfit—which will evaluate new products or services developed by any independent inventor—is the Center for the Advancement of Invention and Innovation at the University of Oregon's College of Business Administration. In a similar way, the Office of Energy-Related Inventions, National Bureau of Standards provides this type of service for inventions in its specific field.

There are—in many areas—regional institutions that can help, as well: To locate them, contact or join one or more inventors' associations, or subscribe to their newsletters (your local library can assist you in obtaining addresses of the organizations). Also, innovators' workshops, run by national sponsoring groups and regional cosponsors, are held across the country.

While you're looking for help, though, be sure to use caution when dealing with so called "invention brokers." Many such companies advertise services that range from evaluating your idea to patenting and marketing it. While some are reputable, don't entrust your money to anyone without making a full inquiry into the business. This checkup should include getting in touch with both the Federal Trade Commission and the Better Business Bureau. You should also ask for the firm's record of success in bringing inventions to the point of commercial development, and you should speak with former clients of the service.

Step by Step Goes a Long Way

Should you decide to apply for a patent after evaluating your idea, you must then establish proof of the date on which you conceived your invention ...or at least of the day you first drew plans, wrote up a description, or otherwise made a record of your "baby." Don't bother sending yourself a description by registered mail: The only proof acceptable to the Patent and Trademark Office (PTO) is that provided by one or more corroborating witnesses. Ideally, you should prepare a record—including a sketch and a written description—when you first get your idea, then ask one or more of your most trustworthy friends to read, understand, sign, and date this record. (Remember, even if one such associate should turn out to be less than trustworthy, you'll have the signed and witnessed record dated in your favor if there's any question about whose idea it was.) You should also keep carefully dated and detailed records of any other steps you take in furthering the development of your invention, have one or more friends examine such steps, and then have them sign as witnesses. Be sure to keep all correspondence related to your invention, all sales slips for material or services used in its development, and any sketches or models of your work in case you later need to validate the facts and dates involved.

Searching the Records

Before you complete work on your design, you should attempt to locate the most closely related prior patents on file. To do so, you'll have to visit the Search Room of the Patent and Trademark Office. You can, if you prefer, hire an attorney or agent to do this search (a patent agent is not a lawyer, but is a qualified practitioner registered with the PTO).

In most cases, though, it's a good idea to conduct the search yourself for several reasons: [1] The information and experience you get may help you with future inventions, [2] you might see some ways in which you could improve your present work, and [3] checking other patents can be a great source of inspiration. Making a search does require both skill and experience, though, and most inventors have neither the time nor the money to make a trip to the Search Room just for this purpose ...thus they end up hiring patent practitioners (either attorneys or agents).

All registered practitioners are listed with the PTO. You can buy a copy of this listing from the Superintendent of Documents ...or you can examine it at a public library that keeps government publications on file, a district office of the U.S. Department of Commerce or the Small Business Administration, or your state's Department of Commerce and Industry. The PTO will also send, free of charge, a list of practitioners with offices in your own locale. When you select a practitioner, be sure that he or she is registered (since only registered persons can legally represent you if you decide to file an application and choose to have help in doing so), and ask for an estimate of search fees and application fees before the work is begun, so that you have some idea of what to expect.

Your preliminary investigation will reveal whether or not your invention is new. It will also show just how similar your bright idea is to others in the same category. You should explain to the practitioner any features of your invention that you believe are new and important, and how each of them works. He or she must know such things in order to find the prior patents you'll need to see.

There's a chance that, once the search has gone this far, you'll discover your invention to be unpatentable or so close to other inventions that patenting simply wouldn't be worthwhile. In that case you'll be saved the costs of preparing and filing a patent application. On the other hand, the evidence you turn up may show how, by changing a feature in your invention, you can make it different from others and thereby patentable. Last of all, you might even locate expired patents that look like potential moneymakers. Except In rare cases, patents aren't renewable after their initial term; some no-longer protected inventions, which may have been developed before a market existed for them, could be very salable today!

Comparing and Deciding Again

Once you've compared your invention with the patents located in the search, you'll have to determine—again, perhaps with the help of a patent practitioner—whether you should go ahead and seek protection. (Remember that you cannot get a patent that will prevent people from using previously patented inventions, and that you can get a patent only on those features of your invention that are different from all others.)

If you decide to proceed, you'll be well advised to retain a registered agent or attorney to prepare your application and file it with the PTO. (Of course, you do have the legal right to represent yourself, but there's really no substitute for professional assistance and experience at this stage.) Give him or her all the useful information you can. Then, once the application is filed, be sure the practitioner keeps you informed of its progress and helps you with any further developments.

As of this writing, the average costs of going after a patent include a basic filing fee of $65 plus additional charges that depend upon the claims you make for your invention. Then, if your patent is granted—a process that could take years, incidentally—you must pay an issuance fee of $100 plus a printing fee of approximately $70. Added to this, of course, are the expenses charged by your patent practitioner—if you have one—for the search, for writing the application specifications and claims, and for defending your claims against rejection by the PTO. Such costs are, of course, in addition to those you may have incurred in the creation and development of your invention. Unfortunately, there's just no fast, easy, and inexpensive way to obtain a patent.

If, however, you're convinced of the value and patentability of your idea and want to "go for it", there are many good reference volumes on the subject to help you. Three of these are How to Patent and Market Your Invention by Marvin Grosswirth (David McKay Co., Inc., 1978), The Practical Inventor's Handbook by Orville N. Greene and Frank L. Durr (McGraw-Hill Book Co., 1979), and Patent It Yourself! by David Pressman (McGraw-Hill Book Co., 1979). These and similar publications will be essential to you in pinning your idea down firmly and enabling you to speak with knowledge and authority about your invention.


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