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Should I patent my idea?

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By Jack King-Scott PhD


To patent or not to patent is an important decision every entrepreneur makes when commercialising his or her idea.  It is no small decision.  If you don’t patent your idea someone could steal it, right?  Conversely, you have heard that patenting is expensive and what if your idea is not a success?


The power of patents

Applying for and obtaining a patent is often the best decision an inventor makes.  A patent grants a legal right to stop others from copying, manufacturing, selling or importing an idea without permission for up to 20 years.  Holding such exclusive rights helps reward innovation, because a patent can be sold or licensed to others thereby generating revenue.  Some businesses even exist solely to collect the royalties from a licensed patent portfolio.

Moreover, if you are planning to manufacture and sell your idea yourself, a patent can help better justify your investment in design, production and marketing.  This is because you have the comfort of lead time over competitors who may steal your idea and the peace of mind in knowing your idea is protected by law and is enforceable if someone infringes your rights.


When not to patent

Despite the above, the simple fact is, in some instances some ideas probably shouldn’t be patented.

For example, to be patentable an idea has to be a new and at least an innovative improvement over what has globally been done before.  Accordingly, it is not possible to patent an existing widget that you previously saw overseas or on holidays.  Moreover, applying a new colour, size, or aesthetic flair to the widget will most likely not justify a patent, since the modification, while new, may not qualify as at least an innovative improvement over the existing widget.

In some instances, your idea may be patentable but you may not need a patent.  For example, if your idea is a new product that you only plan to casually sell on the side, then you may not want a patent.  It is important to remember that a patent is not required to sell a product, rather, among other things, a patent is a tool to prevent others from selling such a product.


Prepare for protection

So if you have evaluated your idea and decided to move forward with a patent, what should you do?

First, do some patent research.  This includes searching to determine whether your idea is new and at least innovative.  More importantly, however, this includes searching to determine whether commercialising your idea will infringe any third party’s rights (i.e., existing patents).

Searching can be done either by yourself or by engaging a registered patent attorney.  However, searching is a specialist task that we generally recommend a patent attorney carry out.


Engage a patent attorney

If you have done the searching yourself and the results are positive, the next step is to engage a patent attorney to prepare your application.

While any one can write a patent application, it is important to understand that it is a legal document that has to fulfil or satisfy legal requirements in order to provide meaningful protection and in order for any patent to claim priority to the document.  As such resist the urge to cut costs and engage a patent attorney to draft your patent application properly the first time.

Generally speaking, the cost of preparing and filing an initial patent application starts at $5,000.  Realistically, this cost is quite minor in comparison with the amount of money required to create, market and distribute an idea, particularly for the peace of mind it provides in knowing that your idea is protected.

The take home message – carefully evaluate whether or not you require patent protection for your idea, and if you do, engage a patent attorney to do the job properly the first time.

Good luck with your decision!


If you have a Patent that you’d like to be protected or you want to discuss how to secure protection for your Intellectual Property with qualified award winning experts, please contact IP Gateway Patent and Trade Mark Attorneys on 07 38083566 or email us at mail@ipgateway.com.au

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