An IP Lawyer Answers the Common Question: "Should I patent this?"


We are often asked “should I get a patent on this?”  While there is no simple answer, it helps to understand the patent process, compare it to other ways for protecting inventions, and then weigh the relevant pros and cons.  (That is how we proceed, below.)  Cutting to the chase, patent protection works best for those who must reveal the invention to commercialize it and who have enough time and resources to apply for patent protection

What is a patent?  A patent is an expensive piece of paper that gives the owner the right to stop other people from using the disclosed invention for approximately 20 years.  It does not give the owner the right to use the invention. So-called “blocking patents” may get in the way.

How much does it cost to get a patent?  The answer will vary based on the complexity of the invention and the amount of prior art in the field.  Our firm does not prosecute patents, so you should talk to someone who does.  You will probably hear quotes in the ball park of $10,000 or more, when everything is included.  And it will probably take a few years. 

Isn’t it cheaper to file a provisional patent application?  Yes and no.  It may cost less in the short term to file a provisional application.  But the provisional mostly just buys you a year before you must file your utility application.  Sometimes that is money well spent, often it is not. 

How else could I protect my invention?  One option is to keep it as a trade secret.  Doing so has several advantages over patenting: (1) you don’t have to provide a detailed disclosure of your invention to the world, (2) you do not need to spend all that time and money applying to the patent office, and (3) you can protect trade secrets essentially as long as you can keep them secret.  Other options include contract protection, including non-disclosure agreements (NDAs).  Whether or not you seek a patent, and especially if you do not, you may find it useful to protect the brand (trademark) or original expression (copyright).  

How do the protections compare?  Here is the main difference between patents and trade secrets: with a patent, you can sue to stop someone from using the invention, even if they figured it out independently.  That is not true with a trade secret.  If someone can reverse engineer your product or just figure it out on their own, then you generally cannot use trade secret protection to stop them.    

So should I get a patent or not?  A patent might be a good idea if you can’t keep your invention secret and you can afford the prosecution cost. For example, if your competitors can look at your product and figure out how it works with enough time to undercut you in the market, then patent protection seems useful.  Patents can also help attract potential funders and possibly deter infringement lawsuits from competitors.  The best way to figure out these issues is to speak with an experienced patent attorney early in the process.  This is very important, so that you do not make any disclosures that will donate your invention to the public.  Such disclosures could potentially prevent you from ever being able to protect your invention as either a trade secret or with a patent!      

How can Brooks Pierce help?  We routinely help clients select the best way to protect their inventions.  We advise on best practices for protecting trade secrets, write and review contracts, and register trademarks and copyrights.  When patent protection is desired, we connect clients with experienced patent prosecutors in the relevant field.  Whatever form of protection our clients choose, we help with strategic advice on licensing, asserting or otherwise commercializing the rights.  When necessary, we bring lawsuits to enforce all types of intellectual property rights, and we defend our clients when they are accused of violating the rights of others. 

Our Intellectual Property team is happy to discuss how we can assist you.  


About Darrell A. Fruth:  Darrell is a patent attorney registered with the United States Patent and Trademark Office and a licensed Professional Engineer.  He has experience litigating patent, copyright, trademark, trade secret and unfair competition matters.  He helps clients license and assert rights to their inventions and defend against claims of patent infringement.  He also works with clients to obtain and enforce trademarks.  Darrell holds engineering degrees from MIT and U. C. Berkeley and a law degree from Yale.  His prior legal experience includes practicing patent litigation in San Francisco.

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