My wife’s nickname for me is the dream squasher. Why? My first inclination is that nothing is patentable. There is no greater dishonesty than cheerleading an invention having little hope of success. This is why every inventor must avoid invention marketing scams.
Just this morning, I received a referral from another attorney. His client had a new invention. “Product development” companies sought him out. Unfortunately, these were invention marketing scams. They prey on inventors. Avoid them at all costs. Invention marketers lure in entrepreneurs with false hope. I was able to find his invention online within a few minutes. I happily cost that invention promotion firm thousands of dollars.
Laws to Protect Inventors
The problem is so bad, Congress passed legislation in 1999. Under Title 35 United States Code Section 297 an invention promoter must disclose the following before entering a contract:
- Total number of invention evaluated.
- Number of customers in the last five (5) years.
- How many received a net financial profit.
- Total that received license agreements.
So unscrupulous are invention marketers the issue found its way into legal certifications. Applicants seeking Board Certification in Intellectual Property by the Florida Bar must disclose any affiliation or work done with these invention promotion entities.
Commercializing an Invention
No one cares about your invention more than you. It is personal. In other words, no invention promotion firm will have your drive. They will not believe in anything other than taking your money. So if that is the problem, what is the solution? You do need a team to realize success. Every invention is different, but here are some key team members if you want things done right:
- CPA or Business Attorney. Set up a real corporate entity.
- Patent Firm. Find one with the right credentials.
- Marketing Firm. Communicate your vision to others.
- Prototyping. Bring your concept to life. Improve in the building process.
Get referrals. Ask attorneys you know for help. We typically know who to use and who to avoid. Even better, find out which attorney other lawyers use themselves. Typically, Board Certification and AV-Rating are the two most legitimate credentials to look for. Find out what other clients they represent.
Budgeting for Commercialization
A red flag for me is if the patent budget consumes nearly all resources. The patent is admittedly a necessary and powerful asset. However, there are many patented inventions that go nowhere. Investors, distributors and consumers need to know about the invention. Marketing, prototyping, and development of the business itself should outpace patent costs.
It is virtually impossible to get a “litigation-grade” patent for less than $10,000-$15,000. For some technologies, $20,000 to $30,000 might be necessary. However, if success or failure pivots on the patent protection, should you go cheap on this? Would you undergo a $500 heart transplant? Know the numbers and when they are off.
A secret. Patents are not commodities. The quality of the patent protection often aligns with the cost to acquire them. If you are lucky enough to have a multi-million dollar deal on the table, the other side will kick the tires of your patent. I have protected countless clients from acquiring worthless patents. If your patent has holes it does not serve its purpose.
Patent Costs Should be a Fraction
Build the Prototype
United States patent law does not require prototypes. However, clients that make the effort to build their inventions succeed far more. Why? In the process of development, they discover new problems…and new solutions. We get out ahead of the competition. We patent (e.g., block off) the alternative solutions to make the invention work. The best embodiments of the invention are protected. None of this is possible without the experience. In other words, invention is a process, not an end result.
Ethics of Patent Practice
A patent attorney has an ethical obligation to the inventor’s best interests. That starts with money. The attorney should treat the client’s money like his or her own. That means an ethical patent lawyer must decline work frequently. That is the nature of ideas. Perhaps most are not protectable. If I can find that the invention already exists and is therefore unpatentable, I’ve served by attorney-client obligation.
Nor will an ethical patent attorney comment on the worth of an invention early in the process. That is a rush to judgment. It is not indicative of a deliberative, experienced practitioner.
Don’t take non-patentability personally. If you are an inventive person, that is a personality trait. Inventors tend to be prolific. They are discontent with the status quo and love finding solutions. The idea you have now will unlikely be your last. We are more than happy to take your money. However, we should reasonably believe we can return more value in the process. If we don’t see a path to success, we are ethically bound to decline in your best interests.
In conclusion, be wary of anyone that claims your idea is worth millions. Ideas are part of success, but it is the execution of the idea that matters most. Moreover, nothing replaces hard work. Be smart, savvy and avoid invention marketing scams. Put together a team of professionals that are honest with you and your path to success. As the inventor-client, your interests always come first.
Probably not. It takes time, effort and resources to commercialize an idea. At that point, it may achieve real value.
Those that address a need….not a want. In other words, patent something that is essential and required….not something optional or just “nice.”
With rare exceptions, the mere “idea” is not valuable. What is valuable are “solutions.” Solutions are ideas AND the method/apparatus to carry them out. Ideas + effort = solution.
Unless it is quite detailed and thorough, concepts are not inventions. They are a starting point. Trying to license a mere concept is often considered intellectual arrogance….your time is worth far more than the recipient who must fill in all the gaps. If you really want to succeed, strive to get as close to a finished product or system as possible.