Can You vs Should You Get a Patent

We were shocked last month when we read Forbes’ Stop Taking Business Advice From Your Patent Attorney where the author wrote that his patent lawyer claimed that his idea would generate substantial income, so much that he “would never be able to count” it all. We’re lawyers, not psychics. It is not our place to make these types of predictions, nor do we make any guarantees for our clients. Venjuris patent lawyer Wendy Akbar added:

“A lawyer should not tell clients that a certain idea is going to make them millionaires if and when they obtain a patent. What the client wants from the attorney is to learn whether his or her idea is something that’s patentable, in light of both the prior art and the requirements of patentability.”

Should You Get a Patent?

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“Can you get a patent?” is a legal question. “Should you get a patent?” is a business question. If you are concerned that a competitor might file a patent for your idea before you, filing a provisional patent application may be a prudent business decision, but before you file a full patent application, make sure that doing so is the best strategy for your business.

The Forbes article explains a problem that some entrepreneurs encounter: they create an invention, but they have no way to manufacture or sell it. If an inventor in this situation pursues and is granted a patent by the U.S. Patent and Trademark Office, all they may get at the end of the process is “an expensive publication,” says Venjuris patent lawyer David Logan.

David says you need to evaluate three things to determine if you should patent an idea:

  1. Whether you have a good idea,
  2. Whether this good idea can be protected with a trade secret (low cost, potential to last forever), or a patent if the idea is patentable (expensive, only lasts 20 years at most), and
  3. Whether there’s a way to monetize this idea.

It’s important to consider the legal and business implications prior to investing the time and money to file for a patent.

Before You Pursue a Patent

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If you’re interested in obtaining a patent for your idea, meet with a lawyer who can frame for you the business considerations that accompany the idea you want to protect. Discuss your immediate and long-term plans so your lawyer can evaluate all your potential intellectual property, your options for protecting it, and how to incorporate your intellectual property strategy into your overall business objectives.

Before you pursue a patent, Wendy recommends that you ask the following questions:

  • Is the front-loaded expense of a patent outweighed by the invention’s business potential down the line?
  • Is there a market for the business?
  • Is the invention cost-effective enough?

The answers to these questions can help you make an informed decision how to proceed. Although patent lawyers are not business advisors, your lawyer may have recommendations or thoughts on these issues, based on their prior experience and technical background. Ultimately, whether to apply for a patent is a business decision that only you can make.

If you need more information about patents for your ideas, please send us a message. Our attorneys have over 125 years of combined experience and are licensed in Arizona, Connecticut, and New York. We can handle federal intellectual property matters in any U.S. state and assist with international matters. For even more information, sure to connect with us on Facebook.

Post written by social media attorney Ruth Carter.

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