A patent might seem like a waste of money when you launch your product. You’re not making any money yet. Patents are expensive. Plus, a patent is never guaranteed.
So, is a patent worth getting? A patent is worth the cost if sales of the invention are much greater than the expenses of getting a patent. Unfortunately, you don’t know what sales will be like before you launch your product. Nevertheless, starting the patent process (i.e., patent search and patent application) may be worth it for a variety of reasons, as discussed below.
Let’s explore your options.
Value of a patent
The primary benefit of a patent is the right to stop your competitors from selling the same product. You can become the sole supplier of the product. Based on the law of supply and demand, lowering the supply allows you to sell your product at a higher price.
If sales are strong, then the patent is absolutely worth it. If sales are weak, then the patent may not be worth it. You might also consider shutting down your business if sales are not that strong.
The problem is that you don’t know what sales will be like before you launch. Because of this, it may be worthwhile to get the patent process started to reserve your place in line to get a patent.
You can see if spending money to reserve your place in line for a patent is worth it by doing a patent search. The patent search shows you if you can get a patent. If yes, then you can submit a patent application to reserve your place in line.
The submission of a patent application gives you a priority date for your invention. As between two patent applications claiming the same invention, the one with the earlier priority date wins the patent.
By doing the patent search and submitting the patent application, you are spending the minimum amount of money to reserve your place in line for a patent. If sales are strong, then you can spend more money to fight for the patent. If you didn’t reserve your place in line, then you can’t even fight for the patent later on. If sales are weak, then you’ve minimized your startup costs.
Is a patent search worth the cost?
A patent search (aka novelty search, patentability search) is valuable because the patent search shows you:
- if your invention is new;
- the areas where you want to focus on.
Is your invention new? If the patent search doesn’t find any document to show that your invention is old, then your invention is new. You may be able to get a patent.
The keyword is “may” because even if nothing is found, a patent search cannot cover everything. The USPTO may find better prior art references to reject your patent application during the examination of your patent application.
The patent search also guides you in the direction of your patenting activities. The search results may show a lack of inventing in a related area. You may want to get a patent in those areas.
Option 1: Conduct an informal patent search
An informal patent search is one that you conduct yourself and always worth it because it is free. Before you spend money on a patent attorney or a patent search service, you should always search the internet on your own to see if your invention already exists. If your invention already exists, then you can stop the patent process. You have saved yourself an immense amount of money in legal fees and business expenses.
To conduct an in-depth patent search, you can read my patent search tutorial which explains the 7 Step Patent Search Strategy. If you do your own patent search, use Free Patents Online and not Google Patents or the USPTO databases. Why? Free Patents Online is more user-friendly than the USPTO database and more complete compared to Google Patents.
Option 2: Hire a patent attorney to conduct a patent search
The pros of hiring a patent attorney are that they will generally do a better job than you can. A big part of the patent search process is to brainstorm search terms. A patent attorney will know what to search for and search terms related to your invention.
The cons of hiring a patent attorney to do the patent search are the cost. However, the cost of the patent search is minimal compared to the legal and business costs. If you find that someone else has already thought of your invention, then the cost of the patent search was money well spent.
Option 3: Don’t hire a patent attorney to conduct a patent search
The pros of not hiring a patent attorney are that you eliminate an expense. But, in most cases, any cost of a patent search whether you do it yourself or hire a patent attorney is worth the fees.
Is a patent application worth the cost?
Option 1: Don’t file a patent application
You don’t have to submit a patent application or seek a patent to make and use your invention. You are not required to get a patent to launch your product. This statement may sound basic. Nevertheless, many prospective clients come into the office with this misunderstanding.
If you choose not to file a patent application, then the benefit is that you don’t incur the cost of seeking a patent. The patent costs for the utility patent is quite steep at around $10k to $25k. To read a detailed explanation of the patent cost to get a utility patent, read the following link.
The downside to not seeking a patent when you launch your product is that if the product does very well, then everyone will compete against you. You will have to survive by being the best in class. Your competitors can’t be stopped when they sell the same invention and compete against you. You have to sell the product as the lowest priced competitor.
Option 2: Do file a patent application
You can seek a patent when you start to launch your product. The upside of seeking patent protection is that you can stop others from competing against you when you get your patent. If sales are robust, then you would be motivated all the more to stop your competitors.
Another benefit of seeking patent protection is that your patent application establishes your priority date. Also, it becomes prior art against others that might seek patent protection for the same invention.
Although it shouldn’t happen, sometimes, your competitor will file a patent application on your very own invention as if it was their own. When this happens, it is complicated to invalidate their patent.
Also, they can assert their patent against you. Many bad things will happen. Fortunately, this has only happened a couple of times with my clients, but it still does happen.
With a patent application on file, you have priority over others that filed a patent application after you.
The downside to filing a patent application is the patent cost. To do it right, you should hire a patent attorney, and the costs can rise between $10k to $20k. That is a lot of money for startups.
To me, it doesn’t make sense to forgo patent protection. Why? Everyone goes into business because they want to make a lot of money. If so and the plans for your invention all come true, your revenue is huge, then you should file a patent application.
If you don’t seek a patent, it almost seems like you are planning to fail. That is just me, though. The ultimate decision is yours and yours to make. I’m just laying out the routes and the pros and cons.
Now, if it is the wrong type of protection for the thing you are trying to protect, then patent protection would be a total waste of money. For example, don’t protect your trade secret with a patent. A patent is a public document and would destroy your trade secret. Also, don’t get a design patent for a functional invention, and don’t get a utility patent for a design.
Option 3: Wait to file a patent application
You can launch your product and wait to file a patent application. Yes, you heard that right, you can test market your product before filing a patent application. Under US patent laws, you have one year to test market your product or service before you have to file the patent application.
The benefit of waiting before your file is that you have actual market data about your product or service. Plus, you don’t have to waste your money on legal fees getting a patent application filed. You can wait till you know that the market data shows that the expenses of getting a patent are worth it.
Previously, when the United States followed the first to invent rule, patent attorneys advised clients that they could wait to file a patent application. Many startups did wait one year until they could sell enough units to justify the expenses of the patent.
Back in 2013, the United States transitioned to a first inventor to file rule. Now, the person that wins the race to the patent office gets the patent, not the first to invent.
You do have some exceptions that still allow you to market first then file after marketing. However, at this time, these exceptions have not been litigated. Thus, we don’t know what will happen.
Plus, to utilize those exceptions, you’d essentially have to spend the money to prepare a regular nonprovisional patent application. If you are going to do that, you’d as well file the patent application.
The downside to waiting is that someone else could see your marketing or your device or service, then file their patent application on the same invention. Someone else would win the race to the patent office. You would lose not only the patent but all of the expenses you incurred in starting your business would be at stake too.
Option 4: File a bare bone, low-cost provisional patent application
The last option is to file a bare bone, low-cost provisional patent application. The benefit of this approach is that it could give you enough patent protection. The keyword that you should focus on is “could”.
There is so much more to preparing a patent application to cover your invention adequately. The patent application should include variants, the minimum viable product, alternative ways. With a bare bone patent application, you don’t have those things built into the patent.
The benefit of this approach is that it is a low-cost option. You could file it as a provisional patent application. If so, the government filing fee will be $65 or $130 plus attorney fees.
The downside is that you are unsure whether patent protection is sufficient to protect you in the long run. Just because you can say patent-pending, doesn’t mean that your patent should you get one can protect you sufficiently.
Is a patent necessary?
A patent is not necessary to sell a product or offer a service. As long as you are not infringing on another person’s rights, you can start to sell your product or service. To find out if a patent might be helpful in your case, schedule a consultation with us.
Are patents useless?
A patent may be useless in some cases. A patent would be useless if you are trying to protect your information as a trade secret.
For example, a patent should not be used to protect one’s trade secrets. Imagine Coca-Cola trying to preserve their closely guarded formula with a patent. That would not work because a patent is a public document.
A patent is useless if you are trying to protect your book or brand. A book should be protected with a patent. A brand is protected as a trademark.
You need to find the right type of intellectual property to protect your idea. A utility patent is useful if you are trying to protect a new functional feature on a product or service. A design patent is useful if you are trying to protect the look, aka ornamentation of a product.
To find out if a patent might be useful to you, schedule a consultation with us.