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Should You Get A Patent

So you’re the proud inventor of the “next big thing” but you’re not sure if you should file a patent application. On the one hand, you want to protect your invention, on the other hand, you’re not sure you want to incur the expense associated with filing for patent protection.  Protecting your invention would be valuable to you since it can help you secure funding and provide your business with a level of protection against competitors.  On the other hand, you’re not sure that you would be granted a patent even if you applied for one.  How do you decide?  Its quite simple really, just follow the two step method below to determine if you should file an application or not.

STEP ONE - Search

The first step is to determine, roughly speaking, what the chances of getting the patent would be.  A prior art search (patent search) can be conducted before incurring any patent expenses.  You can either do one yourself or retain someone like me to do one on your behalf.  You are not looking for certainty here - what you are looking to do is to avoid filing a hopeless patent application (i.e. the application stands little or no chance of success).  If the search reveals something nearly identical to your invention, then its probably not worth filing a patent application.  However, if the results of the patent search are good (the search finds nothing) or even if the search results are 50:50 (i.e. you things which are similar, but not the same), then that’s a signal that filing the application should be considered, provided you can answer the next question.

STEP TWO - Do You Have The Budget

In another article, I explain what it cost to file for and process a patent application.  Look to spend between $8,000 to $18,000 over a three to four year period to file and process your patent application.  If this is way out of whack with your budget, then patent protection might not be for you.  For example, if your budget cannot afford more than $6,000 for patent costs, then don’t file a patent application - after all, you don’t get half a patent for going half way through the process and then giving up.  However, if you do have the budget, and if a patent would be of value, then there really is no reason not to file the application.

STEP THREE - Can You Risk Spending the Funds

OK, I lied, there are actually three steps.  The third step, which is not really a step at all, is to ask yourself whether or not you can risk the funds for patenting the invention.  This is a trivial question to answer if you’re a business and coming out with new products is part of your business.  The answer is yes.  The engineering and marketing costs alone will far exceed the costs of filing for patent protection.  However, if you’re an individual, and if this invention is part of a new venture you’re thinking of starting, then you may be undecided.  The simple way to decide is to rephrase the question.  Instead of asking “should I risk the money on a patent application”, ask yourself “am I committed to investing the time and money into this new venture”?  Let’s face it, starting a new venture, any new venture, is risky.  By far the greatest thing you risk is time - the hundreds and hundreds of hours you will have to spend on the venture to help it succeed.  If you are not prepared (or can’t) devote that much time to the venture, then it might be unwise to invest much money.  Contrary to popular myth, you need BOTH time and money for any project.

Final Word

So should you file the patent application?  Every lawyer will give you the same answer “yes, you should protect your rights and file the patent application”.  However, us lawyers are not the ones you should be asking - ask your partners (or yourself) how committed you are to the venture/invention/project.  In the end, its not your decision that matters, but your commitment to the decision you make that matters.