Should you apply for a patent?

Although a patent could be an important asset, it is not the best option for everyone. Before you start the patent application process, there are some things you should consider, which we will discuss below.

1. The cost for trying to get a patent may not be justified in your situation.

 

You may think you should start trying to get a patent right after you have an inventive idea, but that is not necessarily true.

 

As we discussed elsewhere, trying to get a patent is a time-consuming and costly process. Before you commence the process, you should evaluate your invention from a business perspective.

 

You should research the technical field that your invention is in so that you can have an idea whether your invention is already in existence, and whether practicing your invention would infringe an existing patent. For example, you can do a preliminary patent search at google patents. If you have access to academic journals, you may also look into it because sometimes the researchers publish their ideas without patenting the same. You may also hire a professional to do this for you.

 

You also need to research the targeted market to investigate the business potential of your invention. For example, you may want to define your targeted market and study the potential competition in your targeted market. If the market is too small or the competition too strong, it may be difficult for your invention to be viable.

 

If your invention is a product, you may also need to think about the manufacturing cost for manufacturing your invention. If it costs so much to manufacture that it cannot be sold at a profitable price, it may not be economically viable. If it is a method or process, you may need to think about the costs for implementing it and the benefit that can be derived therefrom do evaluate if it is economically viable.

 

If you determine that commercial success is likely for your invention, you may then think how to protect your invention. For example, you may consider applying for a patent to protect your invention. In some cases, it may be preferable to protect your invention as a trade secret as we discuss below. Sometimes, you may also consider industrial design as an option.

2. There may be other types of intellectual property protection that are more suitable for you.

 

In most jurisdictions, the patent right ends about twenty years after the application date. However, if you are able to keep your invention a trade secret, you can have a protection that last longer than that. Probably the most well-known examples are the recipes for the KFC chicken and the original Coca-Cola drink, which have been protected for decades.

 

Of course, to keep the trade secret protection alive requires your invention to be something that is difficult to reverse engineer. For example, if your invention is a simple mechanical device, you may not be able to protect it as a trade secret because it may be easy others buy a few of your invented items, figure out how it works, and copy it. On the other hand, if your invention is a process to make a product, and it is difficult to tell how your process works from examining the product, you may consider protecting your invented process as a trade secret instead of a patent.

 

You also must be able to keep the secret a secret, which requires necessary steps be taken to keep your invention a secret.

 

Please note that if someone else invents the same invention independently, you will not be able to prevent that person from using the invention, applying for a patent therefor, or publishing the information.

Sometimes, you may consider using industrial design to protect your ideas.

3. Use non-disclosure agreement (NDA) to protect your invention.

 

If you intend to license your invention to others to practice, and you do not want to initially bear the cost of filing a patent application, you may consider protecting your invention by NDA.

 

When you demonstrate your invention to the potential licensee, you do not want to show your invention without any protection. One option is applying for a patent before demonstrating your invention.

 

However, if you want to avoid the cost of applying for a patent, you may be able to use NDA to protect your invention. Before showing your invention to the potential licensee, you can have an NDA executed, detailing what will be protected, the obligations of the parties, etc.