Do patents matter?
Some say patents are worthless. Don’t even bother, they argue, and focus on selling products instead. Others say patents matter. If patents were truly worthless, I would not have a job so my opinion is not unbiased. That being said, which position has a stronger basis on solid fundamental arguments and supporting data? And, if getting a patent is worth some amount of your money and time, how do you proceed responsibly without spending too much before your product even shows potential?
Let’s explore the reasonings behind these opposing arguments on whether a patent is worth the money.
Thinking of filing a patent? If you are not sure whether you should proceed with patenting, call Vic at (949) 223-9623 or email vlin@icaplaw.com to explore timing and patent costs that fit within your budget.
Chicken-and-Egg Dilemma: How do you wait to see if a product will succeed and still patent on time?
Here is the conundrum. How you do patent only successful products without waiting too long? You want to patent only successful products, but you need time to determine which products will sell well. US patent laws, however, impose deadlines on patenting. Missing those deadlines would lead to a permanent loss of rights.
Let me make a proposition that should not be too controversial: successful innovative products deserve to be patented. If you agree, then timing becomes the challenge. On one hand, you need time to figure out if a product will reach commercial success. On the other hand, you cannot wait too long before forfeiting potential patent rights.
Sure, your product can fail. But what if your product becomes quite successful? What is the argument for not patenting a commercially successful product? I think most business folks would agree that if an innovative product sells really well, then it would be worth patenting the innovation to block copycats by competitors. Why allow the competition to forego the hard work of product conception and development by copying your product and undercutting your price?
What is the solution?
Spend Too Little For Worthless Patent or Too Much for Worthless Product
Much has been written about how provisional patent applications work and how you can draft one. What we want to explore in this post is a strategic use of resources to reserve patent rights while deferring spending to see if a product will be worth patenting.
Spend too little upfront, and you risk filing a worthless provisional that offers little to no protection. Spend too much upfront, and you risk wasting money on protecting a potentially worthless product.
How much should you spend on a patent before you know whether a product will be successful?
One strategy is to spend about half the cost of a full utility patent application to file a provisional patent application. By spending about half the cost of a nonprovisional, you should get a more complete specification than spending, for example, only $1,000.
What if you cannot afford half the cost of a nonprovisional application? Then it becomes a sliding scale, but recognize that you generally get what you pay for. What can you afford to spend now versus later?
Let’s work through a simple example. Suppose you receive a flat fee patent quote of $7,000 for a nonprovisional utility patent application, not including USPTO and illustrator costs. If you cannot afford to pay $3,500 upfront, can you afford $3,000 upfront with the expectation that the subsequent nonprovisional would cost an additional $4,500 in fees?
So here’s the tradeoff. Anytime you pay less for a provisional patent application, you have to expect to receive less value than what you would get for the full price of a nonprovisional application. Is the cost savings worth the risk of having a lesser provisional application that might not provide as much support? That’s the business decision you must make.
The less you spend upfront for the provisional, the less support you should expect for the later nonprovisional. The less support, the less benefit of your earlier priority date. Nonetheless, filing something is arguably better than filing nothing.
Would a design patent be worth your money and time?
So far, most of the considerations above relate to utility patents. The cost to obtain a design patent is typically a fraction of what it costs to get a utility patent. If the ornamental appearance of your product is worth protecting against knockoffs, would it make sense to spend about $1,450 to file a design patent (small entity)?
With design patents, there is a smaller risk of overpaying upfront for patent protection. Whether or not your product succeeds, you have only spent less than $1,500 to file a design patent application. If your design patent application is allowed, which occurs in the vast majority of design cases, then you spend another $900 to have it granted. Altogether, you would spend about $2,400 to get a design patent granted assuming you are a small entity and there are no rejections.
Suppose while your design is patent-pending, you begin to see copycats in the marketplace. To speed up the examination of your design application, you can file a Rocket Docket request for an additional $1,640. This will lead to an initial review by the examiner in about 3-4 months from the date of the grant of the request.
Is it worth it to apply for a patent?
Count the costs of not only filing patents, but also of losing revenue and market share without patents. Then consider timing because you can’t wait too long to file patents. If you want to explore a wise strategy for moving forward, call Vic at (949) 223-9623 or email vlin@icaplaw.com to schedule a free initial consultation.
