Originally Posted 2/8/07
I answered a question in a forum at http://www.evancarmichael.com/ recently and I thought I would repost me response here. I did not have time to peruse the aforementioned web site but from what I did it is a good resource for entrepreneurs, so you might want to check it out.
The Question:
How do you decide if you should patent an idea or not?
My Answer:
Here is my straight up attorney-type answer: It depends!
And if you expected something different from an attorney than you just don’t hang around attorneys that much.
Actually, I concur with most of what Stephen, another patent attorney, wrote. However, careful review of his writings will reveal the general lack of an answer as well.
Hey, we don’t beat around the bush because we enjoy confounding non-attorneys so much. The fact is the answer to your question is so fact and situation specific that without a lot more information we can’t even begin to advise you.
Here are some questions you should ask yourself:
1. What is the size the potential market for the invention? Obviously, the bigger the market size and the potential demand for your invention, the more likely a patent will pay off. Some markets are just too small and you may never recoup the expense of obtaining the patent.
2. Am I going to make and sell the product myself or do I want to sell or license the idea to a bigger player in the industry? If the answer is the later you will almost definitely want a patent as most companies (but not all) will not even talk to you unless you have a patent on file. And if you don’t have a patent: why would they buy an idea that they can just move forward and make without paying you a dime? Now if you intend to produce and sell the product yourself, the patent may or may not be as important.
3. Can you live with the chance that your invention is very successful and as such your invention is copied by others with better financial resources than you and because of this they make a fortune and you do not? This is not a trick question. Some people will not care one way or the other while for others the above scenario will eat them alive.
4. Can you afford to patent your invention? I had a client that would drive around the affluent neighborhoods on trash day, taking items that others had discarded and then go up to the local flea market and sell the “trash” for cash to pay me. I tried to dissuade him from some of his filings but he had the bug. Yes, for some just like alcohol or gambling, inventing can be a disease. The reality is that maybe a couple out of every hundred or so inventors make money from their invention so generally speaking Don’t spend money you cannot afford to lose on a patent.
5. As a follow on to the question above: Do You Have What it Takes? Truth be told: most of us do not. What I mean by this is that if I tell you that only 1 in 100 patentees will actually make money, will that cause you to hesitate in moving forward with your invention or will you shrug my statement off since to you there is no question you are the 1 in 100 and not the 99? To make it you often need that kind of dedication to your invention. If you don’t believe in your invention enough to do whatever it takes to make it a success, the very real chance is no one else will either. In the end the invention is the easy part, what you do with the invention is what separates the successful inventors from the wannabees.
Anyhow, that is enough rambling from me right now. If you want to know more, check out the patent section of my Firm’s website, www.lld-law.com, and in particular the FAQs. Also, check out my Firm’s blog. In large part it is aimed at entrepreneurs and independent inventors. See www.lld-law.com/IPblog.com.
Remember, I (or anyone else for that matter) cannot answer to your original question. We can only give our opinions. What is the right answer for some may be the wrong answer for others. Ultimately, do your homework and proceed in the direction that is best for you. And if you do go forward and embark on patenting and pursuing your invention, understand the journey itself maybe reward enough even if in the end the result is less than what you had hoped. BY THE WAY, before becoming an attorney, I traveled down the entrepreneurial road: you can guess the outcome given that I am now doing something completely different. As k me if I have any regrets.
Let me part with one last hypothetical: 20-40 years from now you look back on this decision, which will you regret more:
1. Having tried and spent a substantial some of money and unfortunately the venture did not bear fruit; or
2. Having given up on the idea and not tried and wondering what would have happened had you tried.
Good Luck,
