Hi /r/entrepeneur,First post here. I wanted to make a post about what I see as a patent agent (essentially a patent prosecution attorney w/o a law degree) on a fairly frequent basis to help you avoid pitfalls. This mostly applies to people who come up with an idea for a product or electronic business (e.g., software, apps). If you are a dropshipper or otherwise a retailer of products that you did not produce, this post does not really apply to you (only point #1).Disclaimer: This is not legal advice. If it were then you would get a bill from me.The below are a few rules that I think you should follow:Rule 1: Do not file your trademarks or patent applications on your own and expect the same results as if an attorney or agent filed them (mostly applies to patents)This is the problem I run into the most with entrepreneurs; people who have great ideas and do not shore up their intellectual property before getting their business started. For instance, my law firm gets a lot of entrepreneurs who "bootstrapped" their intellectual property filings before they were revenue positive. I'm not going to associate myself here with my business so this is not an ad, but DO NOT DO THIS. Hire an attorney to coach you through the process. Numerous times I have tried to salvage a patent application that an inventor filed on their own and the law is never on their side in these situations. Obtaining an enforceable, issued patent is what matters. Getting a patent issued that is too narrowly claimed ultimately will not be helpful if you have infringers. An experienced attorney or agent will be able to do this for you. YOU WILL NOT.This advice also extends to online services that say they will file your patent for a small fee of $800 or so. They will do a shit job, and when the stakes are at their highest (e.g., years down the line during patent litigation) you will realize how much a mistake it was to not shell out a few thousand dollars on an attorney-prepared patent application.If you are filing for a trademark, the results may come out positive depending on how unique your trademark is and how narrowly defined the goods and services are. If your trademark is in a crowded field with similar marks, you are going to end up having to hire an attorney to fix the mess (if it's even fixable).Rule 2a: Be very careful about when, how, and who you disclose your invention to. File a provisional patent application first to avoid most of the problems associated with disclosing your invention.This is a problem that is much less common to run into. However, I have had several clients who had their idea stolen from them. Furthermore, I have had numerous clients who have unintentionally barred (i.e., legally prevented) themselves from obtaining a patent.When it comes to disclosing your invention to others, you can obtain a non-disclosure agreement ("NDA") and this would theoretically prevent the person/entity that you disclose your invention to from disclosing it to others, or trying to patent it themselves. However, if you are a new entrepreneur, the chances are that you are not flush with cash and will not have the money to go after someone if they choose to steal or disclose your invention. My best advice to prevent the potential issues from disclosing your invention to others is to file a provisional patent application before you disclose it at all. If you have a provisional patent on-file, you will have 12 months to further develop your invention. During this time you and your attorney will be much more comfortable with disclosures (e.g., to manufacturers, investors, etc.) to people outside of your business. If they do try and take your idea and patent it themselves, your earlier filing date should preclude them from obtaining a patent. You are also in a much stronger position to contest who owns the intellectual property if you were the first to file a patent application.Rule 2b: When you offer to sell your invention to others, you are starting the clock on patent protection.There are certain disclosures that if you make, you will be barred from obtaining a patent. Most importantly, if you even offer to sell your product to others, you will have one year from the date of offer for sale to file a non-provisional patent application.Most entrepreneurs want to test the success of their product on the market before they shell out the money to obtain a patent. That's reasonable, but it doesn't jive well with the law. Most people think that they can file their provisional patent application whenever and then they have another year on top of that to file the non-provisional. It's simply not true! Dippin Dots was precluded from patent protection on their method to create the, "ice cream of the future" because they tested their product in the market more than one year before filing their non-provisional patent application.Rule 3: Even if utility patent protection is unlikely, a design patent may still have substantial value to your business. Especially on Amazon.Oversimplified look at design vs. utility patents: A design patent protects how your product looks. A utility patent protects the structure and function of your product.How your product looks is a part of your brand, just like a trademark. When the customer is on Amazon and looking at your product and they can't tell which product is the "knock-off," they will not care who came up with the idea first. They will care about reviews and pricing, for the most part.This is where design patents come in. If a "knock-off" took your design exactly and then started selling on Amazon, a design patent has immense value. You can get their product taken off of Amazon altogether without launching a lawsuit. Your knock-off competitor may not ultimately be taken off of Amazon if they refactor their product, but you will create substantial headaches for them. If you are earning $10,000+ per week and a competitor knock-off splits the market with you, you will be very happy that you spent $3,000 on that design patent that kept them off the market for a month.Rule 4: Don't underestimate the value of a patent search. Your attorney is not trying to "upsell" you like you do to your customers.Another oversimplification: utility patents are granted if the differences between what is known (prior art) and what is claimed (your legal rights) is different, and different enough that it is inventive.It is unlikely that your attorney or agent knows the field of your invention well enough to draft a patent application around the prior art. When you do a patent search, they will have that information at their fingertips. In my opinion, this will more than likely lead to a better outcome than without the patent search.Moreover, the patent search might reveal that your idea is not a new one at all. If that is the case, then filing for a utility patent is probably not even a good choice, unless there are substantial differences.My opinion is: the patent search is probably the highest value/cost ratio services you will pay for.Rule 5: Intelligently balance how much you put into your intellectual property vs. the product itselfI have had clients who have put thousands into a patent before ever making a sale of their product. I have had clients who have made $100k+ in sales before even thinking about a patent. You need to figure out what the appropriate in-between is for your product. A patent will not sell your product, but it might be an extremely useful tool if competitors try to knock-off your product.If you are inventing a new product that you should consider patenting before most of anything else. But once you have that provisional application filed, you should focus on the product and your business. You should prioritize building your business in the 10 months or so after filing a provisional patent application. At about that time you will have to re-visit patenting when you file a non-provisional application. This is when the costs are really substantial (e.g., $7,000+) if your product/business is not succeeding.Bottom Line: Intellectual property can be a great tool for your business. If your business is selling a product that is inventive, then patents can be an excellent tool to prevent competitors from encroaching in your space. However, you have to be diligent when starting your business to make the correct decisions. Attorneys are expensive but necessary. If your business is ultimately very successful, the amount of money you spent on attorneys up-front will be unsubstantial to what it saves you when you takedown your competitors listing on Amazon, or win a patent infringement suit. see hubwealthy.com/wealthy
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