This post is the second of three key issues that every new inventor should consider.
The reality is that your new invention idea:
- May not really be new
- May not be patentable
- May not be commercially valuable
For this post, let's focus on the fact that your new invention may not be patentable.
Your New Invention May not be Patentable
Let's assume that you have already done an exhaustive retail and web search for your product as recommended in last week's post. Now you feel good as you haven't seen it anywhere else, at least on websites and retail stores, right?
Remember the sinking of the HMS Titanic? The ‘unsinkable' ship wasn't doomed by the small iceberg projecting above the water, but by the massively larger berg underwater that sliced open the sides of the ship.
Much like icebergs, only a tiny fraction of the over 9,000,000 US patents issued to date, have ever been successfully commercialized in retail stores, the rest are “underwater” and out of sight. If one or more of those patents is quite similar to your invention, your application for a new US patent will not be allowed.
In fact, whether or not it is patented, any currently existing product (or “prior art” in USPTO lingo) anywhere in the world can prevent your patent from issuing.
Many new inventors do a quick text string search on the Patent Office website – USPTO.gov. When they don't find what seems to be an exact match, they proclaim “there is nothing out there like my product!”
Not so fast!
A quick search tells you nothing of value, you must dig deeper. For example, I have two US patents for my thin, flexible wallets. It was not easy getting the patents allowed as there were then (back in 2002) many patents for wallets and billfolds. There are vastly more now.
I just did a search on USPTO.gov for the text strings billfold and wallet with the following number of “hits:”
- wallet – 10,291
- billfold – 292
These are patents where the wallet or billfold text string appears anywhere in the patent and, as such, grossly overstates the number of truly similar patents. If we only search patents that have the above words in the title, it becomes a smaller list:
- wallet – 553
- billfold – 38
Of the above roughly 600 patents, probably only about 10% (or 60) will genuinely be wallets or billfold you should consider as competitive prior art.
But you are not done yet! What about patents that cover similar prior art but don't use the words wallet or billfold in the title. What about “card holder” or “bill fold?” As you dig deeper still, you will discover patents for items similar to yours that may not be described as billfolds or wallets, but are still relevant.
But, let's be optimistic. Let's assume your search produced nothing that works in quite the same way as your invention does. Shouldn't you now have excellent prospects for getting a patent? Maybe.
Now you should spend a bit of money – $250 – and have Patent Search International do a professional detailed search for your invention.
They will find things you did not find – they have much better search tools than you do. But PSI will also give you a patentability opinion based upon their search results. And “opinion” it is, as no one can know for certain whether or not a strong patent is obtainable for your product.
In the end, it is your call as to whether you believe your invention is sufficiently unique wherein you can likely obtain a strong patent for your product. Obtaining a very narrow or “weak” patent is really worse than obtaining no patent at all. Why? Because you will spend probably $5,000 plus to prosecute and obtain your weak patent only later to discover that others can produce similar products that don't infringe on your patent. Not good.
Hopefully your patent investigations have revealed you can likely obtain a strong US patent for your invention.
Your next Sherlock Holmes investigation is whether or not your product is commercially valuable/viable.
Stay Tuned for Your New Invention May Not be Commercially Valuable.