“You need a patent to protect your idea!” That’s the advice many inventors hear. In my practice, I find that many solo inventors or small companies take it at face value, and no one tells them what comes next. Having a patent does not mean the world will beat a path to your door and the money is sure to follow. As I’ve written elsewhere, a patent is a business tool first and foremost. It is a necessary expense in building a business, but it is one of many. Without the stomach (and wallet) to build a business, why take on the expense of obtaining a patent?
The store analogy
Let’s say you wanted to open a brick-and-mortar retail store in the trendiest neighborhood in town to sell products that you’re certain will fly off the shelves. There are a lot of things you’d need to do before even knowing whether or not the business will be successful. You’d likely do some market research to understand whether there really is a need for your store and its products. You’d maybe get a small business loan or tap into your savings for some start-up capital. You’d sign a lease, build out the space consistent with your vision, and hire staff. You’d promote the store and build an online presence with a website and socials. These are all necessary steps to build a business, but there can be no guarantee that the business will be a success. You have to make the investment (in time, money, often both), in the hopes that the store might work out.
Getting a patent is a lot like signing that lease. It is an up-front expense, paid before you know whether the business will work. You wouldn’t open a retail store just to take on the expense of a lease, would you? Certainly not. And if you aren’t willing to commit real effort (in time and money) to launch a product, obtaining a patent is an expense that no one needs.*
You wouldn’t open a retail store just to take on the expense of a lease.
One expense of many
For a product to be successful, an innovator doesn’t simply file a patent and watch the money pour in. Instead, he or she must also research the potential market, find a manufacturing partner, test and refine the product, pass regulatory review where applicable, and potentially file more patents or enforce existing ones (or defend the product from third-party enforcement). Many of these endeavors require an investment of time, money, or both, and none are a guarantee of success. Like the brick-and-mortar business owner, an innovator needs to put forth a considerable effort to make the product successful, but that success is not promised, or even necessarily in the innovator’s control.
A patent is an entry fee
I say the patent is an entry fee because it has to be paid first. Testing, prototyping, and talking to manufacturers usually involves showing your invention to other people. Filing before taking any of those steps protects your rights in the invention.** So you will likely be spending real money on a patent before you know whether anyone will buy the product. That’s the risk you take on.
While the total cost associated with obtaining a patent can vary based on technology, complexity, attorney expertise, and other factors, patents are not cheap. Official fees alone, from filing through issuance and maintenance, are around $7000 for a small entity. And that does not include legal fees (drafting and prosecuting the patent application), which can easily exceed the official fees. So all in, you can assume drafting, prosecuting, and maintaining a patent through its term will cost you $15-20k in the US alone. That amount doesn’t include prior art searching, difficult prosecution, foreign filing, and certainly not enforcement of the patent. But that is the minimum expense necessary to protect a new product, and again, there is no guarantee that the product will be a success. Unless you have abundant resources and care little for your ROI, why undertake such an expense without the commitment to the full endeavor?
Final thought
A patent is but one step of many (often expensive) steps that you must undertake before you may see any return on the expense. Like signing a lease, it only makes sense if you intend to open the store. If you are ready to build the business, a patent is a smart first investment.
If you aren’t, save your money.
Action step
If you think you have a great idea, think twice before you decide to pursue a patent. Ask yourself: do you have the money and stomach for the years after filing, and a plan for the next steps? Rather than just hearing “you need a patent,” talk through the early strategy and likely expenses with your patent attorney. That conversation will help you decide whether you’re ready to make the investment. Reach out if you’d like to have that conversation.
*Licensing is a slight exception. Some inventors would rather license a patent than build a business around it. But a patent worth licensing still has to be marketed to the right company and/or enforced, and neither of those comes for free.
**In the U.S., you could test, prototype, and talk to manufacturers without filing a patent application, then file up to a year after such disclosure, but why risk that? Also, most other countries offer no such grace period, so an early disclosure could cost you foreign rights entirely.
