Q&A: How do I get a Patent?

Some of the world’s most profitable products are based on secret formulas and processes that were never patented, they just can't be replicated , like Coke’s formula or the unique snap of a Borsalino hat.

Q: I have a great new idea for a product and I’d like to make sure that my intellectual property is protected. How do I get a patent?

A: Getting a patent is a fairly straightforward proposition. You hire a patent lawyer or lawfirm and they get to work preparing your patent application, sending it in, and shepherding you and your idea through the process. There will most likely be some bumps and unexpected difficulties along the way but, if you’ve hired a competent lawyer, you can expect to have your patent in hand in a year or two and after having spent somewhere in between $10,000 - $20,000 in filing fees and legal bills.

A much trickier, and perhaps more important question is, should you get a patent? The first thing any responsible patent lawyer will do when you come to them with your idea is research your proposed product or service in order to make sure that it is in fact a) unique and b), potentially marketable. Unless you have money to burn, it is a very bad idea to go forward with an idea that has a great chance of being rejected by the U.S Patent Office and a terrible chance of actually selling. If you are not absolutely certain that your idea is both a winner and something that hasn’t been done before, you’re better off sleeping on it a little more.

There are some other things to keep in mind as well when you consider acquiring a patent. For example, if you’ve invented something truly revolutionary, it might be wise to keep that a secret rather than make it public in a patent filing (all patent filings are on the public record). There is enough time between a patent being filed and it being granted for someone else to see your idea, copy it, and start taking profits and market share away from you. Some of the world’s most profitable products are based on secret formulas and processes that were never patented, they just can't be replicated , like Coke’s formula or the unique snap of a Borsalino hat.

Another issue is that patents are issued on a country-by-country basis, meaning that a patent granted in the U.S will not protect you in England, Australia, Brazil etc. and vice versa. If you want to sell your product or service internationally you will have to go through a separate patent process for each region you hope to sell in with all its attendant expense and bureaucratic headaches. And even then, you have no protection from Chinese knock-off manufacturers.

All this is not to say that getting a patent is never worth it. Many times it is the exact right move to ensure that your idea will get a fair chance to come to market unmolested by knock-off artists and unscrupulous competitors. However, many times it is not the right the move, and taking a good, hard, honest look at your idea before moving forward can save you a lot of time, money and energy.

E. David Smith Esq. has 16 years’ experience as an attorney with expertise in domestic and international corporate law. He is available to answer questions and offer advice in areas like financial planning, liability management, and corporate structure as a Business Mentor at CHYE.