What are common issues faced when patenting one’s invention?
I think I might really be on to something, and if everything goes well, this will be my first foray into patents. What are common issues that inventors encounter with patenting their work? Advice about dealing with those issues will also be helpful.
The biggest issues depend on the inventor/applicant and the industry that they work in. This is my list of the biggest issues built up from my experience in my years of practice:
- Converting an idea/concept into one or more working prototypes. You need the technical expertise to do this.
- Choosing the right time to file a patent. If too early, then funding may not be available. Also, if too early, the scope of the patent may be too broad or not supported by the prototype examples. Filing too late is also problematic because others may have filed or published before you and that can stop you getting a valid patent. Having good funding helps.
- Keeping the invention secret before filing a patent application (some jurisdictions still have no grace periods and disclosing your invention before filing a patent will prevent you from getting a valid patent there. Also, grace period provisions vary widely.
- Ownership disputes. Cover off ownership of the invention with others who are helping to develop it and make use of NDAs (non-disclosure agreements) with people you need to show the invention to before you at least have a patent application filed.
- Listening to the wrong advice. There are a lot of business mentors, business advisors and investors that frown on people wanting patents and dislike NDAs. Some of these are sharks that want to steal your invention. Others are misinformed.
- Not properly researching the prior art base (what was published and used before your patent) to see if your invention is novel and inventive. If your invention is not novel and inventive, you cannot get a valid patent. Also, the way the specification is drafted should be done taking into account the prior art base.
- Finding the funds to get a decent patent specification professionally prepared. Self-filed specifications are, in my experience, more often than not a waste of time and effort.
- Finding something patentable in your invention. Software-based inventions and business inventions are difficult to patent in the current climate. Other things that people struggle with are scientific discoveries/theories that, while brilliantly conceived, are not in themselves capable of patent protection. For example, E=mc^2 is a scientific theory that gave rise to nuclear power and nuclear weapons (that themselves were potentially patentable), but the underlying concept itself was not patentable.
- Giving up at the first hurdle. Patents are examined, and examiners often find issues with the patent application. Sometimes these are minor. Other times, they seem major but can be overcome. Don’t give up too early!
- Patents can play an important role in the commercialisation of an invention to market, but I have seen marginal inventions wildly succeed commercially, and fantastic inventions fail dismally. This was not due to the patenting or the merit of the invention but due to the way these were commercialised. Patenting is only one step in that journey and commercialisation is often very hard work. Inventors often do not understand that the challenge in making money from an invention is part of a much bigger picture than merely patenting something.