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Published October 16, 2023

Catherine Cavella, ESQ.

Creatives and inventors often grapple with deciding when to opt for a patent application. The process is complex for those who have no previous experience and often costs several thousand dollars. So, do you really need a patent right now?


If you find yourself asking this question, you’re not alone. We work with clients who are unsure about this stage in their creative process, and it’s not just the complexities or expenses. Some creatives worry opting for a patent too early will expose their idea because of the public nature of patent filings. To explore whether or not you’re ready to file for a patent, we must first understand what happens if you don’t have a patent for your invention.


What Happens If You Don’t Have a Patent?

Two significant risks of forgoing a patent is that someone else may develop the same idea independently or gain knowledge of your invention. In each case, they now have the chance to beat you to the punch and file a patent application with the U.S. Patent and Trademark Office (USPTO). Duplicate and stolen ideas are a common occurrence in the intellectual property realm, so even if you’ve got the next big idea there is a timing element that you need to adhere to.


Once you launch, your invention is public. Without a patent, competitors can freely replicate your invention, manufacture it, and market it, all while reaping the benefits of your hard work and innovation. Essentially, you lose the ability to control who can use, make, or sell your invention.


Securing a patent is the one key deterrent to potential infringers that allows you to exclusively use and license your work and pursue litigation against those who violate your IP protection. With a patent, you also get passive protection – you block others who would copy your invention but for your patent.


Think about return on investment. How much is it worth to keep the copycats away? How much is it worth to have a mechanism that turns would-be copiers into paying licensees? How much is it worth to be able to market your company as the leading innovator in your space? Or to know that someone else cannot patent your invention before you? If you believe you can make a 5x or 10x return on investing in a patent, the decision is easy.


When You Don’t Need a Patent

With that said, when do you not need a patent? Not all ideas and inventions require or are entitled to such protection. The USPTO sets out stringent criteria for patent protection. If your idea falls short of these standards, pursuing a patent is not feasible.


For example, abstract ideas are not patentable. Neither are laws of nature. But small improvements on existing technology can be patentable. So can methods of making or doing something, so long as they are not too abstract.


Additionally, if your concept is already disclosed or covered by an existing patent or application, attempting to patent it again is futile. Conducting a thorough patent search is a good idea before you spend thousands pursuing a patent of your own. Enlisting the help of an experienced intellectual property attorney in your search saves you time and money.


When You Need a Patent

Once you meet the USPTO’s criteria for a unique, patent-qualifying invention, it’s time to get your application together. The sooner you take this step, the better, as it safeguards your invention during the crucial pitch and development phases.


Patents serve as powerful tools for protecting your intellectual property and preserving future profits. They grant you exclusive rights to your invention, preventing others from making, using, or selling it without your permission. These exclusive rights pave the way for commercializing your work and granting licensing rights that grow partnerships and put you front and center in your industry. Patents also increase the overall value of your business. They also can give you a tax benefit – you can depreciate them over several years, like other business assets.


Patents aren’t easy. To navigate this complex area of intellectual property law, it’s best to consult with an experienced law firm. At IP Works Law, we help innovators like you Power Your Ideas®.


Contact us today to discuss whether your invention is ready for a patent application and to explore the best strategies for protecting your intellectual property.

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Since 1992, Catherine Cavella, Esq. Her focus on Trademark Law and Copyright Law for the last few decades gives her deep insights into the fundamental principles behind the rules. Catherine regularly writes about new developments in trademark law, copyright law, and internet law.