Does Every Invention Need a Patent?
Patenting an invention through the U.S. Patent and Trademark Office (PTO) is a rigorous procedure that can take up to three years and cost anywhere between $5,000 and $10,000. Independent inventors may be tempted to eschew the patenting process and sell their creations on their own. However, if you are an inventor without a patent, beware of pitfalls that could lead to an infringement suit.
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What Is an Invention?
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According to the federal Patent Act, someone who "invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof" can apply for a patent. The PTO issues three types of patents: design patents, plant patents and utility patents, the most common patent issued. In addition to meeting subject matter criteria, the invention must also be novel, nonobvious and useful. An independent inventor may have a new creation that meets all criteria, but it might not be profitable to patent it.
Inventor's Considerations
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The Patent Act makes no guarantees as to the success a patented invention may have in the marketplace. Independent inventors should consider whether market demand exists for their inventions and, if so, whether they can raise money to have the inventions produced, marketed and distributed to the consumer market. Additionally, some inventions may be popular for only a short duration, enjoying brief success as a fad. An inventor's success is dependent not only on designing something that can be patented but on her understanding of how to make her invention profitable.
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Patent Infringement
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Federal law gives patent holders a right of exclusion for a limited duration (20 years for a utility patent), during which time no other person can make or sell an invention that is like theirs--even if it was created independently. Many potential cases of infringement are prevented when a new inventor conducts an infringement search or files an application with the PTO only to find out that the same invention already exists. An inventor who does not hold a patent is not protected against an infringement suit should his invention infringe on one that is patented.
Patent Search
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An infringement search is advised for anyone who wishes to market an invention, even if she does not wish to patent it. This service is performed by a professional search firm and typically costs between $300 and $1,000. By ensuring that no similar invention on the market is already patented, an inventor shows that she has shown a duty of care to her fellow inventors. This due diligence can act in an inventor's favor should she be sued for infringement.
The "Poor Man's Patent"
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An invention can only receive full protection against infringement through a PTO-issued patent. However, a common myth is that a "poor man's patent" will protect an inventor's common-law rights. Some inventors write descriptions of their inventions and mail them to themselves, assuming that this action protects them and their inventions. Unfortunately, from a legal standpoint, this offers no proof other than the inventors sent letters to themselves. It does not substantiate the claims inside the envelopes and will not stand up in federal court or before the PTO.
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