How Do I Protect My Idea? Patents Revisited
You have a brilliant idea. With all your might, you are making it grow. You nurture it with your time, your energy, your hopes, your sweat, your dollars and your dreams.
This idea? Its time has arrived.
When you have put so much creativity, time and energy into something, you want to know that it is as well-protected as possible. My job as your attorney is to help you with the “how.” Sometimes, you know what kind of protection will work best for your idea. Sometimes, you don’t, or you aren’t sure which of your options is the best. This four-part series is a brief introduction to the various types of intellectual property. This is an updated version of the Patents post.
Patents are perhaps the most often-requested type of intellectual property protection; ironically, they can also be the least practical for many creators. Patents protect only a very limited scope of intellectual property:
Inventions and discoveries that are: 1) novel; 2) non-obvious; and 3) useful.
The only way to obtain patent protection is to apply for federal registration. The U.S. Patent and Trademark Office (PTO) will examine your patent application, and if it is found lacking in any of the three factors listed above, it will not register. Each of the three factors is a term of art. Although you may represent yourself in applying for a patent, an attorney’s guidance is often helpful in determining whether your invention or discovery meets the three-part test. Only a registered patent attorney or patent agent may act on your behalf in applying for a patent. Obtaining patent protection can be expensive, generally in the neighborhood of $10,000 between PTO fees and attorney fees, and after that, you have to make regular payments to the PTO to maintain it. If you have the right kind of invention or discovery, though, it can be worth every penny to get that registration.
Individuals considering patent protection should generally avoid sharing the invention or discovery with anyone, at least without a non-disclosure agreement in place. Publicly disclosing a patentable idea can destroy the chances of obtaining a patent in many foreign jurisdictions; and in the United States, it starts a one-year clock ticking on filing a patent application. After that one year is up, it will no longer be possible to obtain U.S. patent protection. In general, it is a good idea to keep an invention under wraps until you have had an opportunity to consult with an attorney about how best to protect it.
The major benefit of obtaining patent registration is that it grants you a monopoly on “making, using, offering for sale, or selling” the patented item for twenty years, even for personal use and even if the other party independently created it. That is a greater degree of protection, though a much shorter duration, than any other type of intellectual property.
The major drawback of obtaining patent registration is that you must publish your patent, so when your monopoly ends at the 20-year mark, everyone else knows how to make your formerly-patented item. If the patented material is still commercially viable at that point, you will have a lot of competition, though you will have a substantial head-start in the marketplace. If your branding is good, you may be able to continue to dominate for years to come. For further information, check out another kind of intellectual property, trademarks.
Further Reading
Patent section of the PTO website: http://www.uspto.gov/patents/index.jsp
