In my 10 years of experience, there are generally two different types of inventors. There are inventors that file a patent application then wait for the patent to finally issue. Then, there are those that immediately hit the pavement and start to market their product/services as soon as possible. If you are the second type of inventor, the best time to start marketing your product or service is right after your patent attorney files your patent application.
The benefit of marketing your product immediately after you file your patent application is that you can take advantage of the backlog at the patent office. After filing of your patent application, there are no significant legal fees and no significant notices from the patent office. You just wait for the Patent Office to work its way to your patent application. During this period, you can do many low cost activities such as prepare a business plan, find distributors, find manufacturers, research the market for your product, etc. Some of these items should be finished before you file your patent application. High ticket items can also be done during this pendency period.
These activities help you to determine the marketability for your product. If the product is well received by the marketplace, then you are in a better position to make decisions as to whether you should spend more money to vigorously fight for allowance of your patent application (e.g., respond to office actions and appeal the case if need be). If the product is not being well received by consumers, then you know that you can drop your patent application and not spend more money on legal fees.
For those inventors that wait till the Patent Office grants a patent to market their product, the bad news is that there will be additional costs involved in obtaining the patent such as issue fees and maintenance fees. You will have to pay these fees without knowing whether consumers will buy your patented product. You might think that you will drop the product if the Patent Office rejects your application for patent. Unfortunately, you can’t tell whether the patent office will ultimately grant or deny you a patent based on the first office action. We must respond to the office action, hold a telephonic interview with the examiner or in other words spend more money to figure out the real stance of the examiner.
I can certainly understand the need to be cautious. Hence, I highly recommend finishing the lower cost items first to see if you can get a feel for consumers. However, if the idea is worth a million dollars, then my perspective is that one should immediately market, market, market the product. Why wait?
One reason for waiting is that the inventor or start up is short of cash and cannot afford to invest more money until they have patent protection. Some companies and investors are more willing to invest if they see patent protection. There may be other factors but as a general rule, I recommend doing at least the lower cost marketing items to get a feel for whether consumers will buy your product.
Should you have any further questions or comments, please do not hesitate to contact me at [email protected] or (949) 433-0900.