Profitable Patents

Thursday, June 10th, 2010

There is a mythology associated with patents, not too unlike the Legend of the Holy Grail.  When we hear about patents in the media or even in books supposedly designed to help aspiring inventors, the granting of a patent by the US Patent and Trademark Office seems like the end of the journey.  In fact, many books on the topic flatly state that an inventor should have a patent before he or she even thinks about approaching industry to make a sale.

There are few things farther from the truth.  The only way that a patented idea can ever make money is if it is sold.  Whether it is sold by you, the inventor, to the customer as a finished product or perhaps licensed to another manufacturer for use in their products, your idea has value—monetary value—right here and now if it is truly a great new concept.

A patent will not prove the feasibility of an idea nor its long term potential for sales and profits in the marketplace.  A patent is not a stamp from the government stating it thinks that an invention has merits.  A patent merely states that the government, to the best of its ability, believes that a certain individual or individuals are the original inventors of a concept, and are therefore entitled to exclude other people from utilizing the invention for a period of time.  Therefore, it is important from a practical standpoint for most individual inventors to try to sell their invention even while they are still actively seeking patent protection.  It’s also important to utilize an attorney who has extensive experience in filing patents, and practical knowledge about negotiating license agreements.

Tom Trinko, Principle, The Trinko Group LLC

Patents in the Context of Intellectual Property

Wednesday, May 19th, 2010

Patents are only a sub-class of a larger and broader category called intellectual property.  According to Attorney Richard Stim, “(i)ntellectual property refers to products of the human intellect that have commercial value and that receive legal protection.  Typically, intellectual property encompasses creative works, products, processes, imagery, inventions, and services and is protected by patent, copyright, trademark, or trade secret law” (Patent, Copyright, & Trademark: An Intellectual Property Desk Reference 10th Edition 2009 Nolo).  Intellectual property law is an entire body of law that protects all sorts of ideas, not just inventions which are protected with patents.  Some examples of other forms of ideas that can get protection include songs, software, books, the formula for Coke® and even the Swoosh® symbol we associate with Nike® shoes.  But these examples utilize different forms of protections—copyrights, trademarks and trade secrets.

Getting a Patent Is NOT The First Step

The reason it is important to think about other forms of intellectual property such as copyrights and trademarks in the context of invention is because there is a different and often erroneous expectation in the common sense associated with patents as opposed to all other forms of intellectual property.  For example, let’s say I write my first Piano Concerto in A Minor.  To be honest, it would be a disaster.  First of all, I’m not quite sure how to write anything in A Minor much less a piano concerto, and given my lack of any classical music training the result would be barely distinguishable as music.  That said, someone could actually help me write the musical notes in readable form, and those sheets could be recorded in the Library of Congress and my Piano Concerto in A Minor would have its very own copyright.  In fact, it would be possible for me to sue anyone who performed this music without paying or, at the very least, crediting me.  Would that mean that the Library of Congress thinks my music is good?  Would a large recording contract be forthcoming?  Of course not.

Yet this is exactly the mentality with which some inventors approach the entire patent process.  They assume to their own detriment that the key question when deciding whether to bring an idea to market is “can I patent it?”  That’s not the right question to be asking, and it’s tantamount to a composer beginning her next great symphony by contemplating whether or not it can be copyrighted.  The first and most important questions to ask are “can my idea be sold?” and “why would people want to buy the product that my idea represents?”

So What Makes a Great Invention?

The stronger the answers to the two questions above, the better the invention.  It’s as simple as that.  We all know a great invention when we see it.  And the reason we see it is because people are buying the product.  Whether it be a car, an airplane, hand sanitizing gel, or the iPhone®, we know great inventions when we see them because they are being sold like crazy.  A great invention solves a problem, and people are always willing to pay money to solve their problems.  That’s why it’s important for you, the inventor, to start at the most challenging step in the invention process—the end.  You need to have a very clear idea of what problem you plan to solve and for whom.  Once you know that, you have the foundation for an invention that will not only help people, but will also generate sales and therefore has the potential to make you money.  By the way, if your solution is elegant and efficient enough, so long as no one else thought of the idea first, you’ll probably get a patent to boot.