Patents are an important form of intellectual property protection. A patent provides an exclusive monopoly on a particular invention, meaning the inventor can exclude others from using that same invention for a fixed period of time, typically 20 years. Such a monopoly can provide a significant market advantage.
But patents might not be for every inventor. If you are just starting out as an amateur inventor, should you secure a patent on your invention?
Understanding the Patent Application Process
Before considering whether to obtain a patent, you should first understand what's involved in the patent application process.
Patents are awarded by the U.S. Patent and Trademark Office (USPTO), the federal agency that administers patent grants. At the broadest level, the patent application process involves a review of your application by the USPTO staff to ensure that your claimed invention is properly patentable. This means that your application and patent must fall within the various requirements given by the U.S. Patent Act.
Many incorrectly assume that the patent application process is quick and easy. Compared to the process for obtaining a copyright or trademark, the process for obtaining a patent can actually be time-consuming and complex.
Fortunately, the USPTO offers a helpful guide to the process. On average, it takes approximately two years to obtain a patent, assuming that the process goes smoothly and the application is not challenged by the USPTO patent examiners or other entities that may argue that your patent infringes on their patents. (The USPTO offers a handy dashboard so that you can see the estimated timing surrounding applications.)
Also, the patent application process requires paying various fees. While the fee schedule shifts depending on the nature of your application and the year you apply, you are likely to spend several hundred dollars or more on the various required documents.
Importantly, you do not need an attorney to apply for a patent. However, if your application is challenged by the USPTO's patent examiners or by a competitor, you may feel ill-equipped to respond without counsel. Hiring an experienced patent attorney can be helpful in guiding your application through the USPTO. However, it can also be expensive; it is common for patent attorneys to charge $300 to $700 per hour, depending on their background and experience. (Some patent attorneys have PhDs in addition to law degrees!) Needless to say, these legal fees can become quite burdensome.
Getting Temporary Protection From a Provisional Patent
Patent law provides for a slightly more expedited form of temporary protection: a so-called provisional patent application (see 35 U.S.C. § 111(b)). Unlike full patent application, provisional patent applications do not require many formal documents, such as a disclosure of prior art, formal patent claims, or declarations.
Provisional applications last for only 12 months, and cannot be renewed. During the 12 months, the inventor would need to file a "real," non-provisional patent in order to maintain protection. If no patent application is filed, the provisional application will simply lapse.
Filing a provisional patent application can have several benefits for an amateur inventor. It gives you the opportunity to investigate the potential market for your invention, meet with potential investors or partners, and evaluate whether it makes sense to hire a patent attorney.
Most importantly, during the year of the provisional application, you are able to use the term "patent pending" in connection with the invention, including in marketing. This may frighten off potential infringers, as well as give some confidence to potential investors or partners. You can file a provisional patent application through the USPTO's website.
Evaluating Your Needs Before Obtaining a Patent
Given all of this information, should you obtain a patent or provisional patent on your invention? As an amateur inventor, there is no single answer to that question. It depends upon your goals.
Some amateur inventors truly wish to remain "amateur," in the sense that they are not actively seeking to profit from their work. Perhaps they are solving a creative problem at home, or living out their childhood dream of working in a makeshift laboratory. In such a situation, it is unlikely to be worth your time and effort to apply for a patent.
Some amateur inventors do anticipate selling their invention to a larger corporation, such as a product developer, who would incorporate the invention into another process or device and then handle marketing and distribution. In this situation, a patent application (or provisional patent application) might make some sense. After all, consider the situation from the other company's perspective. What exactly would it be buying? Patent protection, even through a provisional patent application, provides some comfort that your invention will not be easily stolen by a competitor before you have a chance to make the most of it.