Protect that big idea with a patent

Innovation requires agility, and small businesses are agile.

That’s why small companies hold three times as many patents as their larger, corporate counterparts. And it’s why our entrepreneurs are the true keepers of our nation’s competitive intellectual property.

The bad news is that many businesses have intellectual property and have taken no steps to protect it. But IP protection is not only about protecting your rights; it’s also about ensuring that you have not infringed on someone else’s innovation.

Creators of the “next big thing” need to realize that the more successful they are, the sooner others will want to copy their ideas. In this case, imitation is not the sincerest form of flattery. Smaller companies are particularly at risk because, if their ideas are stolen and duplicated, they likely will not have the larger legal departments in place to take the imitators to task.

Patents give their owners the right to exclude anyone else from making, using or selling their inventions. The intent of patents is to give the developer of a new product time to recover development expenditures and start-up costs without having to fight competition. Provisional patents are temporary placeholders, allowing inventors to protect their IPs inexpensively without the formal patent claim. The holder of a provisional patent has one year to investigate the feasibility, marketability and potential “patentability” and licensing of the invention. That’s what we mean by “patent pending.”

Once you are past the provisional stage, it is highly recommended that you engage the services of a registered patent attorney or patent agent to prepare your application. The U.S. Patent and Trademark Office Web site includes a list of registered patent attorneys and agents in your area.

Possible results of the search include 1) someone else had a patent, but that patent has expired; 2) no current or expired patents cover your innovation; and 3) someone else has a patent or patent pending on the same idea. In the first case, you would be free to proceed with your invention with no fear of infringing on anyone else’s IP rights. In the second scenario, you could begin by seeking a patent and/or selling your idea. But if you choose to go ahead and enter the marketplace with your innovation without protecting it first, you forfeit possible protection from infringement in many countries, as well as forfeiting your U.S. patent rights after one year. In the last case, your hands are tied. You are not free to use the idea without a license from the original innovator.

Here are some tips to help protect your idea and your wallet:

• Educate yourself about the patent process so you’ll know when invention marketers are making promises they can’t keep. Do your homework.
• Be realistic. Not everything you may think of will be patentable.
• Know where your money is going. Get a detailed list of how the fees you paid will be spent, and do not pay any large, upfront fees.
• Protect yourself. Get a confidentiality agreement from anyone who claims to be able to help you market your invention. Do not describe your idea over the phone.
• Track your progress. Deal directly with the patent agent who is handling your application.
• Stay optimistic! The patent process can be slow and frustrating. But doing it right from the very beginning will guarantee both protection of your IP and protection of your assets.

For assistance with patents or any other IP issues, feel free to contact our office.

Jim Gann is a counselor with the Missouri Small Business and Technology Development Centers at the MU University Center for Innovation and Entrepreneurship. Reach him at 573-882-7096 or [email protected].