Patent It Yourself - PDF Archive

ChaPter 7 | What SHOULD I do Next? | 177
essence of your invention, like most, is discoverable from
the final product (Box 32), and assume that it’s cheaper
to file a patent application than to manufacture and sell
products embodying the invention yourself (Box 38). Alternatively,
assume that you don’t want to sacrifice the advan -
tages of filing before manufacturing. In either case, you
should prepare and file a patent application (Box 36) and
then manufacture and distribute the invention yourself
with the patent-pending notice (Box E).
I. Test Market Before Filing (Chart
Route 20-32-38-40-F)
Although I know you’d like to manufacture and test market
your invention before filing a patent application on it, I
generally don’t recommend marketing before filing for
patentable inventions because of the following:
1. You have less than one year to do the test marketing
because of the “one-year rule” (Chapter 5, Section E).
2. You may get discouraged unjustifiably if you try to
market your invention and you aren’t successful; that
is—you probably will be too discouraged to file a
patent application and therefore you’ll lose all rights
on the invention forever.
3. You’ll lose your foreign rights, since most
foreign countries or jurisdictions, including the
European Patent Office (see Chapter 12), have
an absolute novelty requirement, which means
that if the invention was public anywhere (with
some exceptions) before its first filing date, such
publication will prevent the issuance of a valid
patent.
4. There is a possibility of theft, since anyone who sees
it can (assuming it’s not trade secretable) copy it and
file a fraudulent patent application on it.
5. There are business disadvantages when:
■■
the product has a short or seasonal selling period
or limited market life
■■
test marketing would disclose an easily copyable
product to competitors
■■
the cost of test marketing would be so high as to
outweigh the risk of regular marketing
■■
the product is merely a response to competition,
or
■■
market conditions in the field are changing so fast
that the results of a market test would soon be
obsolete. (Wall St. Journal, 1984 Aug. 27, p. 12.)
So, assuming your invention is discoverable from the
final product (Box 32), ask yourself whether it’s easier
and cheaper to manufacture and test market it than
to file a patent application. If it is, and if you’re also
willing to sacrifice the above five advantages of filing
before manufacturing (Box 38), and the above business
disadvantages don’t apply, you can manufacture and
market your invention (Box 40) before filing. While you’re
test marketing, you can put a warning notice (no legal
effect, but possibly a deterrent one) on your product, such
as “Patent Rights Reserved,” as Federal Express did on its
envelopes.
If you discover, within about nine months of the date you
first introduce your product, that it is a successful invention
and likely to have good commercial success, begin
immediately to prepare your patent application (Box F), so
that you’ll be able to get it on file within one year of the date
you first offered it for sale or used it to make a commercial
product.
If your manufacturing and market tests (Box 40) are not
successful, you should generally drop the invention and
concentrate on something else (Box X), although you still
have the right to get a patent on your invention. Thus, if the
market test is unsuccessful, but you feel that you don’t want
to give the invention up forever, by all means follow the
line, and prepare and file the patent application (regular or
PPA) within one year of the first offer of sale (Box F). If you
do manufacture and market your invention, and then later
file a patent application on it, be sure to retain all of your
records and paperwork regarding the conception, building,
testing, and manufacturing of your invention; these can be
vital if you ever get into an interference. (See Chapter 13,
Section K.)
Now that we’ve covered all possible routes on the chart,
I hope you’ve found one that will meet your needs. If your
choice is to file a patent application, move on to Chapters 8
to 10; if you want to try to market your invention first, skip
over to Chapter 11. Chapter 10 also covers design patents.
Tip
Don’t give up your day job. While patents can
sometimes be very profitable for their inventors, unfortunately
great success stories are few and far between. Thus I strongly
advise you not to depend on your invention or any patent to
pull you out of poverty or change your life style, because few
do. Keep your present vocation unless and until you attain
success. If your invention does succeed, that’s a great win and
you should enjoy the success to the fullest. However, in case it
does not, you can still continue as before and learn from the
experience.