"I am not a Lawyer"

First, let me state emphatically, I AM NOT A LAWYER and THIS IS NOT LEGAL ADVICE. Patent laws are complex and change frequently. You need advice from a good patent attorney about anything mentioned here. Everything in this section is simply an issue that you should discuss with your patent attorney.

There are many misconceptions about patents. The general public often believes that when the government issues a patent it means they think your idea is valuable. It doesn't. A quick review of some of the wacky inventions that have received patents would dispel that myth. To receive a patent, your idea must be new, unique and useful — how useful, or to whom, is unclear.

Another misconception is that no one else can make or use your idea if you have a patent. That's not exactly the case. No one else should practice your patented invention without your permission, but there are no "Patent Police." In other words, if someone copies your idea, you don't just report them to some authority who steps in and makes them stop. You have to do it and that often involves taking them to court.

Patent suits are very expensive. It is estimated that the average patent trial costs more that a half million dollars. If you don't have that kind of money, it can be very difficult to enforce your patent. There are other solutions, but none that are easy. It may be possible to get an attorney to take your case on contingency if you have a good case and there's a lot of money involved. You may also get the other party to settle out of court by giving you royalties for a license.

If you do go to trial, you are in for a time consuming ordeal. Arguing a patent case is difficult because you have to get the judge or the jury to understand the technical issues involved. Patents can be difficult to read and understand. You should read the claims of a simple patent and ask yourself if you would know when something infringed on it. The protection provided only applies to some very specific claims about what was invented. It does not cover all products similar to the patented invention. There are many similar products which all have their own specific patents.

A patent is rarely enough to convince manufacturers to invest their money. It's a hard sell even if you have a working prototype. Convincing a manufacturer to commit to developing a new product is like trying to convince an unmarried friend that you have the perfect mate for them. You may be sure they are right for each other, but they'll be plenty cautious.

Having a patent will increase the chance that a manufacturer will consider your idea. However, they probably won't be thrilled about your invention no matter how great it is. The people who evaluate your idea are the same people that are paid to think of ideas. They usually are worried that it makes them look bad if someone outside the company thinks of better ideas. This is called the "not invented here" syndrome. It even causes problems within companies. When a secretary suggests a good idea, the highly paid new products manager often finds fault with it.

Another fact that amazes new inventors is the huge number of things that have been patented. It's informative to look through patents in the field of your idea. You can do patent searches online free of charge. Some online resources will be listed at the end of this overview. This should not take the place of a search by an experienced patent attorney, but it will get you started. Professional patent searches are not expensive — about $500, or so. Some inventor organizations can help.

As you search, remember that most inventions are not patented. If someone can show that your idea already existed, your patent could be declared invalid even after it is awarded to you. This is only one of the many ways that others can overcome attempts to protect intellectual property.

Some experts advise inventors to forget about patents because they are so costly to enforce and so easy to overcome. On the other hand, you could compare a patent to a burglar alarm for a car. No alarm will prevent an experienced and determined thief from stealing a car. A fool-proof theft prevention system could be very expensive and might be more trouble than it's worth. However, any system could be a deterrent. A thief may bypass your car in favor of one that is easier prey even if it only has is a sticker that claims it is protected by an alarm. The same could be said of patents. Protecting your idea can be worthwhile even it only deters a few of those who would copy it and reduce your share of the market.

Each inventor must decide where to invest limited resources. Sometimes the thousands of dollars for a patent are more wisely spent on advertising or refining a product. That doesn't mean you shouldn't be concerned about protecting ideas. Just as you wouldn't leave keys in a car parked on a city street, you don't want to lead others to believe it's okay to take your idea. You need experts to help you determine the kind of protection, how much is appropriate and when to get it.

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Ron O'Connor, P.E.

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