Is Getting a Patent Worth the Time and Expense?

Is Getting a Patent Worth the Time and Expense?

I know many people think that what they hear/see on TV is all true.  Most probably don’t actually think it’s all true, but they tend to think that as they’re watching certain things.  If someone looks like an expert, then they must be…right?  This is the case with the famous show we have all probably seen at least once – Shark Tank.  One of the questions you hear the “Sharks” ask often is, “Did you get a patent for it?”  If the answer is yes, they applaud the entrepreneur.  But if the answer is no, then you’d think it was the end of the world.  But from my experience, if you are dealing with an everyday consumer product with a wide market, a patent is often just a waste of time and money.  Here’s why…

But before I tell you why, here’s one of those silly disclaimers I feel compelled to inject before I go any further:

The author of this blog post is not an attorney or an attorney or attorney spokesperson.  They have not been authorized by any legal authority or Google to be considered an “expert” in this subject matter in any way, so take what you read here with a grain of salt and do your own research.  Any information conveyed in this post is from the experience and research of the author, which may or may not be 100% accurate or in accordance with your own experience and research.  And, for the love of Pete, don’t just get your info from a patent attorney – they require payment whether your patent is granted or rejected.

Ahhh!  Now that I can breathe easier having typed that, here’s why I believe a patent will most likely be a waste of your time and money if you created an everyday, consumer product with a wide market…

Did you know that stealing a patent isn’t really illegal?  That’s right, an entrepreneur or large corporation can knowingly steal a patented product, make it, sell it, profit from it and no one is going to put them in a jail cell or impose fines on them.  Therefore, it’s not illegal.  The only way you, the patent holder can get any recourse from the infringing party is to sue them and hope that a judge will side with you, make them pay you royalties and all your court costs and attorney’s fees.  But unless you have deep pockets, you likely won’t have the money to pursue the infringing party and therefore your patent, and all the time and money it cost you to get it, was a total waste!

To put it more succinctly, most independent inventors can’t afford to sue infringements on patents granted to them.  To add fuel to that fire, the patent litigation process can often be out of sync with the market life of the patented product you’re spending loads of time and money to protect.

Even if you do win the case and the infringing party is ordered to pay you royalties and all your legal costs, you will have to have the money to pay for all these legal costs up front, because no patent attorney is going to work on contingency.  And then you have to keep in mind that just because a judge orders the infringer(s) to pay you royalties, it doesn’t mean they ever will ever pay you a red cent, which means more legal and other costs out of your pocket to try to collect.  Good luck!  these large corporations and deep-pocket entrepreneurs know how to play the game.  Likely, they have better lawyers/legal teams than you will ever be able to afford a small-time entrepreneur/inventor.

So what can you do to protect your invention and it’s profitability?

Well, to be frank, not much – not as a small-time business person.  Even if you get a US patent, not only can it be infringed upon by domestic thieves (and you can bet it probably will be if it becomes even remotely popular), but companies and people from other countries are totally immune from any protections a US patent might give you.  So, if you want patent protection in other countries, you will need to apply for a patent in all of those countries.  Remember, China has a bad track record of infringing on patents, trademarks and all other “intellectual property”, and if they see a profitable product they will replicate it and drive your profits to the floor and even put you out of business.  And they’ll do it so fast your head will spin.

So what’s the best way to profit from a product you invented?

Well, in my personal opinion, you have to take the product you invented, saturate the market with it, and make your killing from it before the inevitable happens – others start copying your product.  And before that happens, sell the product/company to someone else and be done with it.

Unfortunately, this is not a solution for those of us with not much money or the ability to land a decent investor.  This will require at least hundreds of thousands of dollars, of not millions.

So why do the Shark Tank sharks always ask if a person has a patent for the invention they are pitching?

Well, for one, they are investors.  So if they are going to invest in your business/product, they want to make sure you have some patent protection.  They know it can and will be infringed upon but that is something they will worry about when the time comes.  And when that time comes, they will either help you defend your patent with their deep pockets (if they feel it has been profitable enough FOR THEM at that point), or bail.  But without a patent, they will have nothing to defend therefore it looks like a bad investment on their part from the start.

And for another reason, they don’t want to have to pay for the patent themselves.  They would rather you pay for it and bring them an already-patented product to invest in so hat any money they invest into your product goes toward what really brings in the ROI – marketing, sales and distribution.

So if you have an invention you want to bring to market, think long and hard about wasting your time getting a patent.  Your time and money may very well be better spent on saturating the market, make all the money you can before the real sharks come out to play, and get out when they do.

And here are a few more bits of info you might want to know about patents that you may not have known already:

  • Anyone can be granted a patent, even if they stole the invention – In 2013, congress changed the way patents are granted to patent applicants.  It used to be that if someone took your design and patented it before you patented it, but you can prove that you had invented it first, they could have their patent nullified.  However, post-2013, the patent granting process has changed.  Now it is a “first to patent” system.  Meaning, you invent something and fail to patent it, and then a competitor/thief comes along and patents your design, THEY are the ones who own the patent and they can then sue you for infringement and collect royalties FROM YOU, the actual inventor.  So much for intellectual property right, huh?  Don’t ever believe that any congressman is your friend.  If you do, I have a bridge to sell you…cheap.

 

  • There is no such thing as the “Poor Man’s Patent”, and there never was.  – Many people believe that, when it comes to intellectual property like a patent, trademark or copyright, that all you have to do is put the intellectual property on paper, seal it in an envelope, mail it to yourself and never open it unless and until you have to prove your right to it in a court.  The idea is that the sealed envelope and the postmark will prove you are the originator.  Well, this is an “Old Wives Tale”.  The “Poor Man’s” method of proving rights to intellectual property was never recognized by any US court and it never will.  And with the case of US patents, given the tip above, it doesn’t even matter since the rules/laws were changed and the first to patent an invention is the “rightful” patent owner, even if that person/company stole the invention they patented. So even if it were true, it isn’t anymore, post-2013.  Congress isn’t on your side!

 

  • Patents aren’t cheap! –  Not only are there different levels in the patent application process  where you have to pay the USPTO money before you are granted a patent, but you have to “renew” your patent every year, and there’s a fee for that, every year.   Not only that, but there are many, many costs that go along with a patent, including attorney’s fees.  It is estimated that the cost for a simple invention with a Utility patent will cost an average of around $45K for the life of the patent (which is typically 20-25 years).

 

  • You may just want to file a PPA (Provisional Patent Application) – If it makes you feel “safer”, you can file a PPA for your invention.  PPAs are not reviewed by the USPTO, they merely say “hey, I filed my PPA so no one else can file for this same invention”.  PPAs give you the ability to have the phrase “Patent Pending US 1234567890” on your product, it’s packaging, your website, commercials, etc.  If this makes you feel better, by all means, do it.  For most people, a PPA will only cost $65 and the time to draft it.  However, once filed, you have one year after you submit your PPA to submit your NPA (Non-Provisional Application – this is the “real deal” that gets your patent reviewed and ultimately granted or rejected by the USPTO).  If you do not file your NPA within that 1-year window, not only do you lose your right to show “Patent Pending” on your products/communications, but you also lose the ability to patent the product in the future.  There are some grey areas to this time-frame, but that is the gist of it.  Just keep in mind that if you have a hot product, someone can and will steal it anyway after they have researched you and found that you are a small fry who could never afford litigation.

Oh, and here’s that disclaimer again:

The author of this blog post is not an attorney or an attorney spokesperson.  They have not been authorized by any legal authority or Google to be considered an “expert” in this subject matter in any way, so take what you read here with a grain of salt and do your own research.  Any information conveyed in this post is from the experience and research of the author, which may or may not be 100% accurate or in accordance with your own experience and research.  And, for the love of Pete, don’t just get your info from a patent attorney – they require payment whether your patent is granted or rejected.

 

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