In the age of the internet, ideas are a dime a dozen. While some are genuinely brilliant and original, many more are simply an iteration on something that already exists. How can you protect your idea from being stolen? How do you decide whether or not to patent it? We'll discuss some of the considerations for protecting your idea, including what it entails, how much it costs, and when you should do it.
1. A short history of patents
A patent is a government-granted monopoly to make, sell, or use an invention in the United States. A patent gives a person who comes up with a new idea the right to stop other people from making, using, or selling that idea for a limited period of time, usually 20 years.Thus, if your new game idea takes the internet by storm, you're in a great position to protect it from being stolen, divorced from its original source, and adopted by someone else without your permission.
Patents are an effective way to protect your newly minted idea, because many people, especially non-patent holders, are unwilling to take the time to protect their ideas from being stolen, divorced from their source, or bought out. Thus, they often go out and register the idea (making it available to the public) but don't do anything with it. Patents are costly, and when you get patented, you forfeit your ability to prevent other people from stealing your idea. How much can you expect to pay for a patent? Let's take a look.
What is a Patent?
A patent application is a formal proposal from an individual or entity (a "patentee") to make, sell, or use an invention. The Patent and Trademark Office reviewes every application submitted and if it isn't already granted, approves it, lists it as a pending application, and issues a patent. Once that patent is issued, it becomes the property of the Patent and Trademark Office (PTO), and other organizations can no longer make, sell, or use that invention without first obtaining a license from the PTO. The PTO makes money by charging licensing fees and also tries to collect a royalty each time someone uses or displays the patented invention. Typically, the PTO costs $30-$60 per application. Thus, a content creator who uses one of your ideas without paying you compensation for the time and effort that you put into the idea is stealing your idea and is subject to infringement laws.
2. What is a patent?
A patent is a set of exclusive rights granted by a government to an inventor or their assignee for a limited period of time in exchange for public disclosure of an invention. Patents are a form of intellectual property (IP), and may be used to prevent others from exploiting that invention, normally for a period of 20 years.
Each patent gives its inventor the right to exclude others from making, using or selling the patented invention for a specified number of years after their application is filed. Patents are granted by the U.S. Patent and Trademark Office (USPTO).
Patents can be valuable for two primary reasons. The first is to prevent others from using or selling your invention before it is commercially viable. If the patent holder can predict when a useful commercial version of their invention will be available, they’re able to invest in that project with far more certainty. The PTO uses statistics such as expected market adoption, use cases, or backward- and forward-looking reports when deciding when to grant a patent.
The second reason patents provide a new revenue stream for inventors is that by licensing their invention, they can collect royalties on royalties, similar to how software developers earn royalties on software licenses. Patent royalties aren’t paid by the patentee directly. Instead, the owners of patents collect them by licensing them. You own your ideas, but others can copy them, which can become an infringement of your copyright—i.e., patent or copyright—whenever they make any reuse of your original ideas. Therefore, a patent defends your idea from others rights-holding entities.
Patents, in general, are given for inventions that are considered financially significant and serve important government objectives. Whether or not you actually intend for your idea to be commercialized or licensed, protecting it is an important component to maintaining control over your IP.
Intellectual property law is complex and subject to different interpretations across different countries. Therefore, while varying standards exist, no two countries seem to apply the concepts similarly.
3. How do you get a patent?
You can file for patents in many countries around the world, but to do so you need to get an attorney. The first step is to find an attorney who specializes in patents and you can do that by searching on Google or LinkedIn. Get in touch and tell them about your idea and what you’ve done so far.Patents protect innovation, and your patent gives you the exclusive right to make, use, sell, and import modified versions of the patent. The amount of protection granted depends on the nationality of the patent owner. English patents cover inventions occurring within the United Kingdom, whereas Japanese patents cover inventions occurring either within Japan or abroad. The European Patent Court and the World Trade Organization also apply patent regimes to some extent and these bodies do business through formal agreements known as IP Treaties. The US Patent and Trademark Office administers patents in most countries.
The first step in protecting your idea is actually acquiring a patent. Patents can be expensive to secure, and the longer you wait before filing, the more expensive it will be. You can apply for a patent in the same way as securing a contract. Some countries may even give you priority in filing your patent if you have a larger business or you have an American citizen managing your company.
The lawyer who files your patent will own the patent for 15 years from its filing date. After the 15-year period passes, the patent automatically lapses to the government. As a general rule, it’s in your best interest to get as much of your idea protected as soon as possible as the sooner you do so, the sooner you can reap the rewards of having your idea patented. Others have argued that there is some particular urgency you need to get your idea patented as soon as possible as the sooner you secure it the sooner you can realize the financial benefits.
It’s also important to note the exclusivity period of a patent varies internationally.
4. When should you apply for a patent?
Generally, you should apply for a patent as soon as you can and as soon as you think your product is ready. If you wait too long, you could lose the opportunity to protect your patent rights.However, you can always apply for a patent only after you’ve built your prototype and prove to yourself that you can offer an actual, marketable solution to the problem. You should also be willing to give away your invention for free so that you have the chance to recoup your research and development costs.
S.M.A.R.T (standard patent application) guidelines are helpful when it comes to determining the merit of patent applications.
Patents protect new inventions from being copied, which means that an individual who finds your invention independently can’t simply make copies of it and sell those copies to others. Essentially, your patent prevents others from using (non-patentable) parts of your invention.
There are two major components to patentability — usefulness and rarity. By themselves, these categories aren’t all that helpful. A party doesn’t legally own the use of a procedural novelty in common law countries, or common utility after 1895, for example.
The usefulness of an invention is also subjective. That is, a party will interpret the requirements of patentability differently from other parties that may or may not have the same technical knowledge at the time. Rare-earth magnets, for example, are technologically novel when it comes to their use in magnets, but they are common-law inventions in most other countries.
Rarity is taken care of on the USPTO website. The requirements for invention, including the phrasing,
is the only relevant criterion. It checks for the existence of an inventive idea. Whether the idea is original, obvious, or simply possible is immaterial.
It is also important to remember that, while a patent might prevent others from infringing your patent, other parties might be able to make and sell their own variations of your invention.
5. Where can you apply for a patent?
A patent can be applied for at the United States Patent and Trademark Office (USPTO) or the European Patent Office (EPO). The USPTO is a part of the Department of Commerce and the EPO is a part of the European Union. There are also patent offices in individual countries.
In order to apply for a patent, an inventor (or their legal adviser) must first register the idea with the relevant patent office. Generally, an inventor registers their patent with the USPTO first. Once the inventor has registered their original idea with the USPTO, then other countries can request to register the same idea. Any country with a valid patent can request to register an application by simply sending a request to the USPTO with the exact title and filing date of the application, along with a copy of the patent. Once the USPTO receives and processes the request, it will deposit the application in its own database.
Once the patent is deposited, it doesn’t necessarily mean that other countries have received and decided to register the same patent. It took the USPTO over thirty years to issue 7,500 patents! However, if foreign countries decide to register your idea, it could negatively impact your potential market and revenue, so it’s best to apply for and secure a patent in the country that awards the patents.
The patent costs $1,000 to $25,000 depending on the fee schedule offered by the USPTO, and preferably around $10,000 or less (although most patent offices will provide you with a quotation for between $500-$2500). When you receive your patent, you’ll receive a patent covering your new idea. In the US, the cost to patent is set by the U.S. Congress. Should you want to implement your new idea, you’ll need to open and maintain a patent license for it in your country of origin, which may include an expiry date and cost.
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