When should you seek patent protection?

On Behalf of | Mar 13, 2020 | Industry Patents And Infringement |

If you have invented or created a new, useful machine, tool, manufactured item, design or process, you may well wish to patent it. The main advantage to you is that once patented, no one else can make, use or sell your invention for 20 years from the application’s filing date without your permission. In other words, your invention belongs to you and you alone for that period.

The other main advantage of a patent is that should anyone attempt to make, use or sell your invention without your permission, you can file suit against that company or entity for patent infringement and receive such benefits as money damages and/or injunctive relief. There is also the possibility of recovering attorneys’ fees in exceptional cases, as well as increased damages, in cases of willful infringement.

Preparing to file

Inventions represent a form of intellectual property that can ultimately produce revenue for you. It makes sense that you want to protect your invention from infringement by others so you can enjoy the fruits of your creativity. However, before you apply to the U.S. Patent and Trademark Office, you need to find out whether your invention actually is patentable. Some questions you should ask yourself include the following:

  • Does my invention have one or more practical applications?
  • Have I made a prototype yet?
  • Have I documented my research and thought process in creating it?
  • Have I made drawings of it?
  • Have I invented a new, novel, non-obvious improvement to an existing product or a new product itself?
  • How much can I reasonably expect to earn from my invention for the next 20 years?
  • Have I searched the relevant prior art to know if my invention is novel?

Assuming you can answer “yes” to most of the above questions, your invention is likely ready for patenting.

It’s a Race to the Patent Office.

Since the U.S. follows a first to file regime, rather than first to invent, it is more than ever a race to the Patent Office. While there remains a one year grace period in the U.S., it is better to file your U.S. patent application before you begin any commercial activity, particularly if you plan on seeking patent protection outside the U.S. With the advent of micro entity status and prioritized examination, the potential exits to decrease the costs of filing an application, as well as the time to examination and issuance. The average legal fees to prepare a patent application for filing range between $5,000 and $11,000, according to statistics released by the American Intellectual Property Law Association, depending on the complexity of the technology.

In addition, you will have to pay progressive maintenance fees 3 1/2, 7 1/2 and 11 1/2 years after you obtain your patent. As with any invention, you’ll want to understand the pathway to monetizing your patent rights, which may include manufacturing and selling your patented product; selling or licensing your patent rights; and leveraging your patent rights to secure lending or venture capital.

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