Can I get it patented?

When you ask,

Can I get my product patented?

The answer goes:

it definitely is, but it might not worth it.

Let me explain.

Some people mistake a patent as a comprehensive protection for a certain idea or product. Well, a smartphone is said to be covered by 250,000 patents. It should tell you how narrow a patent can be.

Does that mean it is easy to get patent?

For a surprise to someone, the answer is “yes,” but I didn’t say it’s cheap.

For a product development, creative steps are essential even if you are imitating another product. You don’t know how they built it, so you re-create the manufacturing steps after reverse-engineering. In so doing, you’ll have to go through trials and errors, and then you end up with a better, or sometimes worse, article.

Well, if the difference is on the better side, you might want to get it patented. Even if it’s on the worse side, you can still get a patent. I know it goes against your intuition, but legally speaking, “utility” means that it has a use, not necessarily a beneficial one.

So, a minor tweak in manufacturing process and a tiny new feature in your product can be patented.

Why then, do people speak so highly of patent?

To get a patent, you will need help from patent professionals. And they are expensive.

While it is easy to say that patent grants you exclusive rights in certain steps or features, disputes regarding the steps and features will be always very technical and to the minute details.

A patent has to be very clear as to what extent the patent owner has exclusive rights. And for that, patent law has developed in a way that having a law degree will not quite make you cut out to be a patent practitioner. An attorney with an engineering degree can sit for a patent bar administered by the United States Patent and Trademark Office, which has notoriously low pass rates. The result: it costs many thousands, even up to hundreds of thousands, of dollars to secure a patent.

It is not to say there is always positive correlation between cost and value. But, in reality, you wouldn’t invest in something unless it justifies the cost. Issued patents are there because at least someone believed the value would exceed the cost.

How do you measure the value of a patent?

There are many factors including the size of potential market and consumer demand, but most patent professionals agree that it essentially depends on how difficult it is to “design around.”

Let’s say you make a new product that goes viral. Consumer demand skyrockets, and you have legally sanctioned monopoly, assuming you got the patent. Your competitors would look at your product, and the first thing they would think about is how to make a similar item that is not infringing your patent right.

We call it designing around a patent. If your competitors can easily design around your patent, the value of your patent is, of course, not so much.

Patent practitioner tries to make your patent hard to design around.

To get a patent, you will need to explain your tech to the extent anyone has ordinary skill in the art can reproduce the tech. Further, you will need to claim what exactly is the scope of your patent right.

The scope sets the boundary of your patent right, so it tells others if their products would infringe your patent. Further, others will try to find out if they could design around your patent.

It is a critical aspect of patent prosecution because you, as an inventor, can claim the boundary of patent right.

Of course, you have to persuade the USPTO, or the patent examiner, that your claim is not overreaching. Overreaching patent scope might unjustifiably call a common practice in the industry patent infringement. So, when you claim broadly, the USPTO will be reluctant to grant a patent.

Last words

So, the real question is if your invention would make a “good” patent that is worth of your money.

By Youngsik Jeon, Esq.

J.D. Chicago-Kent College of Law; Georgia & Illinois Bar Member; USPTO Registered Patent Attorney

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