1. Selling Your Invention Before You’ve Got a Patent
Under current USPTO patent law, there is a 12-month window after the first public disclosure of an invention during which the inventor may file for a patent. This means that if you sell your invention, or even if you show it off in public, you’ve started the countdown clock ticking. And when that countdown hits zero, you will have permanently forfeited the patent rights to your invention.
That should make you think seriously about selling your invention before you’ve got a patent. But it gets worse than that, even. That 12 month grace period that you have in the United States does not apply for most foreign patent offices. Most countries do not have any grace period, and so if you plan on filing for patent protection abroad you absolutely must not sell or publically disclose your invention until you’ve established a priority filing date!
Since the 2011 America Invents Act, the USPTO has adopted a “first inventor to file” principle, replacing the previous “first to invent” rule. What this means is that it won’t matter if you can show that you came up with the invention first if someone else files for a patent before you do. So, by selling or disclosing your invention before you have a patent application on file, not only will you have started the countdown clock, but you may also be providing someone else with an opportunity to pull the rug out from underneath you and beat you to the patent.
Unless you have some exceptional justification for doing so, avoid selling your invention until you’ve at least filed a provisional patent application. If you are going to sell without a patent, understand the risk and know what you are getting into.
2. Unrealistic Expectations
A common problem for first-time inventors is to fall victim to false hopes and unreasonable expectations. This can lead to falling prey to bad advice, making poor decisions, and maybe even ruining lucrative deals. Especially when it comes to product licensing, novice inventors often have unrealistic expectations of instantaneous fame and riches. Well, there’s certainly money to be made. But it’s going to take some hard work.
Probably the most common unrealistic expectation is to view inventing as a get-rich-quick scheme. The cold hard truth is that coming up with the idea for the invention is actually the easiest part of the invention process. As Thomas Eddison said, genius is 1% inspiation, 99% perspiration. If having a good idea could make you rich, we’d all be wealthy inventors.
It’s important to understand that this applies just as much to invention licensing as it does to manufacturing and producing it yourself. Of course, licensing is a simpler path with fewer responsibilities for the inventor — that’s the whole point, after all. But no reputable firm is going to offer you handsome royalties and make you rich just for an idea. You’re still probably going to have to develop your invention at least to the functional prototype stage before you’re likely to convince any company to license it, and that takes work.
Potentially profitable licensing deals can also fall apart when inventors have unrealistic expectations during the bargaining process. Greed and impatience have sunk many licensing deals that could have been good business for both partners.
It’s important that you set realistic goals pertaining to the market value of your invention, and that you take into consideration the investments that will be required by the licensing company in order for them to take your invention to market. Large firms are liable to simply walk away from a deal if the inventor is making outrageous demands. Understand that these deals take time, and don’t expect a large distributor to work everything out in just a couple weeks.
All this means that you have to do your homework. Which leads us to…
3. Not Doing The Research
No matter what your intention is for marketing your invention — whether it be licensing or manufacturing — it’s important that you do diligent research, or you’re liable to lose big time on your investments.
Before you get carried away with product development and patent applications, you need to have some realistic notion of the marketability of your invention. With this in mind, there are two preliminaries that need to be taken care of.
First, you want to do your preliminary market research. You need to figure out whether your invention has the potential to make money. Otherwise, all the time and money you invest into developing this idea will all be for nothing. Don’t assume that everyone will want your invention! Your invention may seem like a great idea to you, and maybe it is! But that doesn’t necessarily mean that there is a public demand for it. You’ll need some empirical evidence to back you up before you invest in developing this idea.
Market research is an ongoing process that you will be engaged in throughout your product development process. In many ways, it’s a dialogue between you and your potential customers. But you need to get that conversation started early, before you’ve invested into the patenting process. So see what’s out there, and try to develop a realistic sense of the kinds of prices the market will bear for your invention.
If you think you have a reasonable prospect of making money, then you need to know whether anybody else already has a claim to this idea. Nothing will put the brakes on a product development project like finding out that someone else already holds the patent. The last thing you want is to learn this after you’ve invested a bunch of your valuable time and hard-earned money into your version of it. So, one of the first things you should do is your own preliminary search of the market. This should be followed up with a professional patent search.
The purpose of a preliminary patent search is to save yourself the trouble of performing a professional search in the event that you can rule out the patentability of your invention yourself for free. Your goal is to look everywhere you can to find any evidence that an invention like yours has already been put on the market or disclosed publically. Visit stores, search the web, and take a look through the USPTO’s patent database. You could also try Google Patents.
If in your search you find that your invention has already been brought to market, well then at least you’ve saved yourself from investing in a professional search and you can get on to coming up with your next bright idea. If however you fail to find anything relevant in your own preliminary search, that’s the time to pay for a professional search. Do not assume that because you were unable to turn up any prior art yourself that you are in the clear!
With over 9,000,000 patents on file at the USPTO (and counting), plus a mountain of documents pertaining to inventions that were never patented, it is virtually impossible for any new invention not to have some kind of relevant prior art in the USPTO databases. A patent search that turns back nothing is a patent search that was performed poorly.
Once you’ve determined that your invention is eligible for patent protection, it’s time to consider whether you want to file a provisional patent application. This is not a decision that should be taken likely. Messing up a provisional application can have disastrous consequences down the road.
4. Filing Shoddy Provisional Patent Applications
A provisional patent application is a tool that allows inventors to establish an earlier priority filing date for their invention. A provisional application must be followed by a non-provisional utility patent application within one year. Provisional applications are quite simple to file and are relatively inexpensive. There are few formatting requirements, and as a matter of fact no one at the Patent Office is even going to read it.
That said, a poorly filed provisional application can really come back to bite you. While a provisional application allows you to claim ‘patent pending’ status and gives you that valuable early filing date, the description of the invention in the provisional application must match that which ends up on the non-provisional utility patent, otherwise your patent application is liable to be denied. This means that if your invention changes significantly between your provisional application and the final product, your application will be rendered ineligible for patent protection.
That means a lot of money down the drain, and it means you lose your priority filing date. But it’s actually worse than that. If, during that year-long period between your provisional application and the utility patent, you sold or made any public disclosures pertaining to your invention believing you were protected by the pending patent which has now been rendered invalid, then you may have now forfeited your patent rights entirely. You will almost certainly have forfeited foreign filings rights, and there’s a good chance you might have forfeited your rights in the United States as well.
Provisional patent applications can be very useful, but only if they are done properly! Otherwise, you’re better off avoiding them altogether.
Because they are relatively easy to file, certain firms will offer to file provisional applications for you for very modest prices. Always be wary of these services! A provisional application will never result in a patent! They are useless unless they are followed up with a utility patent, and a poorly filed provisional application might actually hurt your chances when it comes to filing the non-provisional application.
To make matters worse, some of these companies offering cheap patenting services are complete scams. Which leads us to another unfortunately common mistake for hopeful inventors.
5. Falling Prey to Invention Marketing Scams
Always remember: if something seems too good to be true, it probably is. We’ve talked before about the dangers of falling for invention marketing scams, but it’s worth repeating. There is no shortage of shady companies out there who target naive inventors with promises of riches with very little effort.
They start by offering patenting and market research services, usually for a few thousand dollars. If the inventor falls for it, the “invention marketers” will get back pretty quickly with glowing reviews of the product, promising the inventor that the market is just dying for their invention and that they will surely make a fortune. All they need is another payment of several thousand dollars up front, but in exchange they won’t charge any royalties!
Well, they don’t charge royalties because they don’t expect any sales. Inventors can end up forking over tens of thousands of dollars, and you can be sure that they never hear back from these companies again once they’ve sent off their check.
To make matters worse, the “patenting services” these fraudsters offer amounts to nothing more, in most cases, than a provisional patent application. And as we’ve discussed above, this could end up undermining your patent eligibility.
Cad Crowd is here to help you avoid these common pitfalls! In addition to CAD services and industrial design, we offer a range of patenting and product licensing services for inventors and entrepreneurs. Let us know about your product development needs. Get a free quote today.
