Unless specifically noted otherwise, this information relates generally to the U.S. patent system, and not necessarily to other countries.
If you already have a general understanding of patents , and you have an invention that you think you may want to patent, this post will provide you with information that will aid you in making your decision. As always, I recommend that you consult a registered patent attorney before you make a decision one way or the other.
Alternatives
When deciding whether to patent your invention, you should keep in mind the alternatives. The main alternative is to keep your invention a trade secret . Although I will address trade secrets in greater detail later, they are essentially exactly what you would expect. There is no national registry of trade secrets like there is for patents, trademarks, and copyrights. To create a trade secret, you just don’t tell anyone about your invention. Anyone who you disclose it to should be made to sign a non-disclosure agreement and any secret material should be clearly labeled “Confidential” or the like.
An advantage of trade secrets is that they never expire. Disadvantages include that others are legally allowed to reverse-engineer your product, that nothing prevents others from coming up with your invention independently and selling it, and that secrets are just hard to keep. However, trade secrecy has worked pretty well for the Coke recipe, for example. Keeping an invention a trade secret is a big decision and should only be taken after consulting with an attorney regarding the full measures that must be taken and all the advantages and disadvantages as they pertain to your particular situation.
Reasons to apply for a patent
Knowing the alternative to patenting should give you some idea as to why people apply for patents. When the invention must be disclosed to many people or is difficult to keep secret, you might consider a patent. When your product is easily reverse-engineered, a patent application makes sense. And when another inventor is likely to independently come up with your invention sooner or later, you should lean towards patenting.
There are also other reasons to apply for a patent. If you do not want to make your invention yourself, a patent or patent application makes it much easier to shop your invention around. Once you have filed your patent application, you have gotten your filing date for patentability purposes and do not need to worry as much about disclosure. If someone steals your idea and you have a valid issued patent, you have them in a tough situation. A court judgment with a finding of willful infringement could leave them paying you triple damages.
A patent or patent application makes your invention much more attractive to buyers, licensees, and investors. A buyer or licensee will want to know they have the exclusive right to market your product without having to worry about copycats taking their market share. A buyer might even want your patent just for the right to enforce it in court against infringers, even if they have no plans to market your invention themselves. Investors will want to know their investment will be protected. If your invention is the result of an SBIR grant, the government will most likely require you to seek patent protection for this reason.
For these reasons and more, many inventors and small businesses choose to apply for patents as soon as they decide there is a strong potential market for their invention. There are many reasons why, if you decide to patent, you should do so without delay. But a big reason is that you will want the protection of a patent application early in the process of developing your invention. As soon as you have filed for patent protection, you can and should use “patent pending” at all times in relation to your invention. This will let others know you are taking the appropriate steps to protect your intellectual property. You can disclose information about your product somewhat freely to potential investors or buyers without worry and can bring together the people you need to take your invention to market.
Examination of patent applications typically takes at least 2-3 years. In the meantime, if product development does not pan out, you can always abandon your application without spending any more money. While costs can be high initially, particularly for individual inventors, the investment is frequently a sound one in the long run if your invention has a strong chance of market success. In addition, there are ways to preserve your patent rights while incurring minimal costs upfront. See here for a discussion of different types of patent applications. Many inventors with limited financing choose to file a provisional patent application at a low cost. This preserves their filing date for one year and allows them to shop their invention around before deciding to proceed with a full application.
Reasons not to file a patent application
One reason not to file a patent application is if you think your invention might not be patentable. It can be very expensive to obtain a patent. It can be just as expensive to go through the patent process and discover, in the end, that your invention is not patentable. Therefore, it is usually cost-effective to do a patent search before deciding whether to file an application. For around $500 a patent attorney can conduct a search to determine whether your invention meets the requirements for patentability.
However, searches are not fool-proof. Most search reports will contain a clause to the effect that, while the search is reasonably comprehensive, there may be other publications or pending, non-published applications that render your invention unpatentable. For more information on patentability, see here. If your invention may not be patentable, applying for a patent may not be cost-effective.
If your invention or product is definitely not patentable, you might be better off pursuing a different strategy. If practical, you could keep your invention a trade secret, but you could also focus on differentiating your product in the market through branding and advertisement. A good trademark can be very helpful towards that end. Or, a copyright might be more appropriate to protect your work.
If you have any corrections or would like to see additional material covered in this post, please let me know in the comments.
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I agree with your views of secrecy in a business.
Definetly,
secrecy is an efèctive & ad-hoc factor, for a short periöd. But is harnfull in long run.
Hence it should not be a long tearm policy, in a perticular matter. Theory of Business Administration advocates the Secrecy för a shört time only, As the custømer /subscriber is always eager to know about you, & your prøduct. Many it also come tø know, if there is sömeöne utilizer of a perticular name, design or contnts of product or service, Yet it becömes it’s BRAND MARK or NAME. Later any time it discløses that someone other had got petent of that brand, It losses a lot. Normally In films, songs, musics, written articles it happens such type.
INDIAN NEEM &BASMATI RICE are such cases.