Q & A -How Do I Protect Myself?

Q) Should I get a patent on my Big Idea?

A) I think that there may be huge misconceptions about this topic. I am going to try and address Patents here to help us all get a better understanding of what patents do and don’t do, what they cost (generally) and when to get one.

The most important thing to know about a patent is that they are only as good as the money, resources and time you have to defend and protect your idea or claim.

You can have a patent on something but if you are fighting someone with bigger, better and more money and resources... guess who usually looses. Why? Because eventually you will exhaust your funding or resources and quit and unless it is ironclad, blatant rip off with a clear picture of a well funded, easy to get to company as the target, no lawyer will take the case on contingency and hope to make their money when the case settles. And we all know lawyers can become very expensive.

There are companies who make their fortunes on the backs of other entrepreneur’s R&D waiting for a hit product and knocking it off quickly and producing a similar one at a cheaper price regardless of any patents. They usually have an army of lawyers instead of research and development budget and their strategy usually is to wear you down in court for as long as it takes to exhaust all of your assets then make you settle for pennies. It this fair? Heck NO. Does it happen? Yes, all the time.


So when I read so many emails and letters from people saying that they can’t or won’t talk about their idea because they are waiting to pull together enough $$ to get a patent, it causes me a bit of pause. Unless you have redesigned the human genome and anticipate winning the Nobel prize, for most ideas with patents It is usually very easy for a competitor to tweak an idea just a little to get around it.

I could list you off a dozen examples of products that are virtually the same but with a small engineering difference therefore allowing them to compete for the same customer in the same space. My belief is that a patent provides you with tangible proof to your claim of ownership so that you can begin a discussion, or a fight to stake claim on what is or was yours. But it is still up to you to prepare, defend, and rally the correct players, resources and money for that fight and in most cases that money could usually be better spent in marketing, advertising, PR or business development.

That said, I would still encourage anyone with a truly BIG idea to have a conversation with a great IP attorney and investigate the options. Any credible attorney worth their salt will absolutely tell you if you are wasting your time before you engage them in the process. Finally If you would like to save some money you can do some research about patents on your own by visiting the US Patent and Trademark Office online at www.USPTO.gov – patents - search

Below is a general look at patents, their protections and general costs. As with all advice, use it as a baseline but I encourage you to keep digging until you arrive at the solution that works best for your own personal situation.


Provisional Patents- allow you 1 year to work on an idea/product/concept while you are still developing it but this shows proof of concept.

The cost depends on the complexity of the idea and information to be related to the patent office. $1-3 K should handle a bare bones draft. However, after filing a complete provisional patent application, no additional work needs to be done during the year. If you make significant improvements in your idea before the year expires, just expand the first filing and re-file with the US patent office.

Utility Patents- a more complicated patent that takes longer and normally takes several passes through the EXAMINER at the patent office.
This can run from 10K to 50K based on how much research and communications between office and attorney have to happen.

Budget about $5,000 to 10,000 for the utility patent application, formal drawings, and extra paperwork. The negotiating back and forth with the patent examiner may go to $10,000-30,000. At the end, there is the issue fee to pay.


Design Patents. A simpler patent process, but also the easiest to get around. These can cost as little as 2-5 thousand dollars. This protects only the decorative aspects of your product, not the functional aspects.

Mailing yourself a copy of the idea and not opening the envelope does NOT protect your idea. It is inexpensive enough to file a provisional application and that is necessary, except at large companies with systems to create records of inventions.

So after hearing all of this are you more confused or less? The bottom line is that while a patent does provide you with rights afforded by law to the ownership of your big idea, even if you get one there are no ‘patent police’ who will rally to your cause to protect you. It will still be up to you to fight it out in court and prove your case to a judge before any money will be awarded. So consider cafefully the options before you before diving head first into a patent. In many cases, just plowing ahead and selling your great idea into the marketplace is a far wiser decision than waiting until you feel protected by a patent which you may not have the cash left over to defend even if it is infringed upon.

Special thanks to Barb Luther, patent attorney extraordinaire and a member of the Lucky Napkin Board of Experts for her contribution to this answer. Both Barb and Amilya Antonetti will be addressing this and dozens more of your questions about your Big Idea in person during Lucky Napkin Live, March 20th 2008. To learn more about it and to purchase tickets click here:
http://www.luckynapkinlive.com