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1. Novelty

2. How will you practice your invention?

3. Complexity

4. Probability of obtaining a patent

5. Longevity of your invention

6. Can secrecy be maintained if not patented?

7. Dealing with infringers

 To patent or not to patent is the question; is there a simple answer?  Not really!  Yet, the difference between success and major loss may depend on this.

 If you are a small business or an individual, approach this issue by analyzing these key criteria:  1) how novel is your invention 2) how will the invention be practiced; 3) will the patent be complex; 4) probability of the patent being granted without appeals; 5) what is the expected longevity of the invention; 6) can you maintain your invention secret if not patented; 7) dealing with infringers.

First the most obvious one, everything patentable must be novel, yet not everything novel is patentable.  Contact us if not sure - it’s a question of law not always obvious to a layperson.  USPTO examiners reject most applications on basis of novelty and obviousness!

Is patent protection important for your invention to succeed?

If you intend to sell or license your invention, then the answer is yes.  Many potential licensees and investors will not even enter into negotiations with the inventor unless the invention is patented, or at a minimum, a patent has been applied for.

The answer is not so obvious if you intend to make and sell the object of your invention.  If the novelty in your product can be reverse engineered, then a patent will make it easier to ward off infringers.  On the other hand, if the novelty is so hidden that reverse engineering is not really a threat, then you might consider relying on trade secret laws. For example WD40 and Coca-Cola compositions are trade secrets.

What is the longevity of your invention?  Trade secrets go on forever, if they stay secret.  On the other hand a utility patent will expire in 20 years from filing.  Anyone can practice your invention once the patent expires; and you will have taught the world how to practice it, in exchange for the limited time monopoly rights.

Another important criterion is a financial one.  Will the expected profits warrant the costs of patenting?  And if you intend to practice your invention, then you may have to budget for litigation also; offensively if your patent is infringed, or defensively if you’re accused of infringing. Again, don’t hesitate to ask us for assistance with cost estimates.

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