I have not written much about patenting your invention up until now, in spite of the fact that it is a topic of great interest, particularly to new inventors.
I don’t think you should focus on or obsess over patenting in the beginning. I think your primary focus must be on whether or not your product is viable and valuable to potential buyers versus the competition. Only then should you consider patenting your invention.
But, in this post, I will give you my thoughts about patenting: pros and cons.
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3 Patent Camps: the Haters, the Skeptics, and the Mavens
Among successful inventors there seems to be 3 “camps” or schools of thought regarding patenting of inventions:
- Patent ‘Haters’ – those who simply never patent their inventions
- Patent Skeptics – those who sometimes patent and sometimes do not
- Patent Mavens – those who always patent their inventions
Believe it or not, there are inventors who simply never patent their inventions before taking them to market – I call them Patent Haters.
Among those inventors is Roger Brown who says he never puts more than $100 into an invention idea and never patents anything, yet he is able to license his inventions to companies.
The pros to this approach are significant. You will save $5,000+ in patent prosecution expenses, plus aggravation and uncertainty as your patent will likely take 3 years to issue – if it is allowed. By skipping patenting entirely and its related expenses, you have eliminated a big chunk of capital risk that comes with inventing (when you patent your product). It seems to have worked out for Roger Brown.
But, you should know, there are some significant cons to not patenting, as well. Most companies will prefer to exclusively license your product. What is being licensed is not your product, but your patent(s) and other IP (intellectual property). Without a patent there is nothing to license and, more importantly, nothing to prevent their competitors from copy-catting the product and selling it themselves as well. The company would wonder why they should pay you royalties for an unprotected product.
If you decide to venture your product (do it all yourself) and you have no patent, you are taking a huge risk. Any and every company that wishes to do so can jump in and sell copy cats of your product with no legal consequences. Worse, they likely can blast the market and sell far more than you can of what is your product.
Patent skeptics simply recognize that patents are expensive and time consuming for the inventor. They also recognize that over 95% of patent holders never profit from their inventions. So, the skeptics sometimes patent their inventions and often-times do not patent their ideas depending upon the situation as they see it.
Harvey Reese is firmly in this camp from what I can tell. Likewise, Stephen Key also has a skeptical approach toward patenting.
There is much to be said for this approach. I think that if you have a lot of product ideas and you just want to metaphorically throw many against the wall and see what sticks, then choosing not to patent them might be a good approach. You expect little, but if you get a product licensed, then it is icing on the cake. On the other hand, if you feel you truly have a solid product that could sell millions of units, is it worth taking the risk of putting it out there without a patent? I don’t think so.
This brings us to the third camp – Patent Mavens.
I count myself and uber-successful inventor (and mentor of mine) Barbara Pitts in the Patent Mavens camp. We think you should always patent your invention if you intend to either venture it yourself or if you intend to license to a company to produce and sell it in exchange for royalties.
Earlier, we discussed the cons to patenting, so let’s discuss what the pros to the patent always approach are.
Many companies will not discuss licensing with you unless you are patent-pending or your patent has issued.
If a company sells into 10,000 or more retail stores (as does Allstar Products), a new invention rollout into stores is a multi-million dollar risk for them. They will have to get a significant inventory of product onto store shelves (at considerable expense and risk) before they know for certain if the product will sell well or poorly. That is a big market risk that usually pays off, but not always.
As mentioned above, why would they take such a risk if months later a key competitor could be selling the same product?
A second concern I have is if a company is willing to license your unpatented product (the Roger Brown approach), how strong are your legal rights if you later face the licensee in court over a licensing dispute? Their attorney could simply state, “we have put millions of dollars into developing, manufacturing and selling this product all over the U.S. You (the inventor) did little more than bring us an idea and some sketches. We have every right to own and control this product, not the inventor.”
My final thoughts are that as an inventor, what do you really have to sell? What do you actually control? You have a product idea to sell, but the only thing you truly control is your patent – if you have one.
What do you think? I’d love to hear your thoughts.
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