Do you need a patent? You might need a patent, but it depends. Sorry for the lawyer-like answer, but whether you need a patent depends on at least these three things. First, can the invention be protected with trade secret? Second, is the invention patentable? And third, do you want to stop others from making and selling your invention? The answers to these three questions determine whether you need a patent.
- If your invention can be protected with trade secret(s), then you likely do not need a patent.
- If your invention is patentable and you want to stop others from making and selling your product, then you likely need a patent.
Trade Secret Protection May Be Better Than A Patent
A trade secret is a company’s technique or some combination of information that is only known to the company for the making, using, or selling of a product or service. Trade secret protection is largely done within the company through non-disclosure agreements, employee training, and knowledge of insider threats to control the company information. Keeping control of proprietary information that is required to produce a product by trade secret is strongest. The smaller the number of people who know the better.
Trade secrets are possibly the best way to protect propriety means and methods. Also, they can also be the best way to protect almost any kind of product that requires a proprietary technique or process to produce. When competitors do not know the proprietary means, methods, techniques, or processes they can not repeat the things necessary to produce the product. Licensing for products protected with trade secrets can be accomplished using non disclosure agreements.
Intellectual property in the form trade secrets is arguably stronger protection than a patent. So, if your invention or product can be protected with trade secret(s), then you likely do not need a patent. If it is the case that the invention or product cannot be copied or reverse engineered, then trade secret would protect the making of the product such that no one else could make it anyway. If making the product is protected by trade secret, then there is no concern over others being able to sell the invention or product either.
Keeping new inventions and products protected with trade secret is better than a patent, because there is no time limit on the protection. Trade secrets can last indefinitely, while patents only last for 20 years. If you can keep your proprietary means and methods under trade secret protection, you probably should.
Copyable Products May Need A Patent For Protection
If your invention or product cannot be protected with trade secret(s), if it is patentable, and if you want to stop others from making and selling the invention or product, then you likely do need a patent. Also, if the plan is to license the invention patent protection may even be highly recommend to protect your interests. In particular, if litigation or stopping infringers is likely to be needed, seeking patent protection may in fact be the best way to protect your new product or invention.
New inventions and products frequently get made with new processes that are not known. The trouble occurs when it is possible to copy or reverse engineer the product, or it is possible to experiment within a fixed set of options without knowing about the new processes such that the product can be made. New inventions and products that can be readily reproduced may very well be best protected by seeking a patent.
If you think you will need to be able to stop others from making and selling your new potentially copyable invention or product, you will need a patent to be able to file a take down notice or a court case to stop and collect from infringers. If your invention does not meet the criteria for patentability, it cannot be patented. There may, in fact, be no recourse, or ability to stop competitors from infringing if the invention or product is not patentable.
If your invention or product is patentable and you want to stop others from making and selling it, you likely will need a patent. If there is any anticipatable need to stop others from profiting from your invention you will need to apply for and get a patent. You cannot file a take down notice or an infringement suit without already having a patent for the invention or product.
If You Do Not Want To Stop Others From Copying, A Patent Is Not Needed
There are those who are just trying to make new and better products and don’t mind the competition. Sometimes inventors just want a better or new product, and they are not interested in stopping others from making and selling their creations.
Important Tip: If the answer to the question “do I need a patent?” is yes, plan ahead. It can take years to get a patent. Read more about how long it takes to get a patent.Carson Patents®
Advantages Of Getting A Patent
There are 5 advantages of applying for and getting a patent. They are all also reasons why a granted patent is better than a pending patent application. The bottom line is if the invention or product needs protection from others copying and selling it, you are going to need to get a patent. The following are our five advantages to getting a patent:
- A granted patent is the actual legal right to control the making, using, and selling of the product or process for the term of the patent. A pending patent application is not yet the right to control.
- Competitors are not generally very afraid of pending patent applications. Stopping infringers with a granted patent is vastly easier and less expensive than trying to do the same with a pending patent application.
- You can get a licensing deal with a granted patent. You are not likely to get a licensing deal with only a pending patent application.
- Granted patents have determinable asset valuation. For the pending status comparison: first, provisional applications are mere placeholders having the value of staking a claim to a date; and second, active prosecution is too uncertain until notice of allowance unless it is a divisional or continuation in part from a granted patent. Read more about determining patent value.
- You can get an injunction or a product takedown with a granted patent but not a provisional or pending application. In other words, you can enforceably stop insistent infringers with a granted patent.
The main disadvantages of registering a patent are time and money. If the patent application is done correctly, the value of the patent will outweigh the time and money spent. Keep in mind that it can take years to get a patent and will likely cost thousands of dollars. Read more about patenting costs.
There are 5 steps to getting a patent. You must start with a patent search and patentability evaluation. We must know with a reasonable good faith based belief that the invention is in fact patentable.
How long does it take to get a patent? Typically about 2 years.
There are no guarantees in patenting or applying for a patent. Even using the patent services of a United States Patent and Trademark Office (USPTO) Registered Patent Attorney or Agent does not guarantee your invention will get a patent allowed and issued.
When To File A Patent Application
At Carson Patents, we recommend contacting us immediately after having the idea to ensure you are the first inventor to file a patent application. In the United States, like most countries worldwide, the first inventor to file their patent application is the one who can be given the right to the patent. For this reason, it is important to begin the application process as soon as possible. The time it takes to get a patent can consume multiple years. Carson Patents can help you from the moment of idea conception all the way through to patent allowance and issue.
Do You Really Need A Patent – Consult A Registered Patent Attorney Or Agent
If you have a new invention or product that you think is patentable, we suggest you consult with a USPTO Registered Patent Attorney or Agent. Applying for and prosecuting a patent application is complex and has a lot of proper formatting and presentation requirements. Carson Patents highly recommends you do some patent prior art searching yourself. Read about how to search for prior art. For patent examples, check out our utility patent application services and design patent application services pages on our menu above.