The Importance of Getting a "Patent Pending" for Your Invention
Our Guest Blogger, Jim Lowrence, is an inventor who successfully marketed, licensed and sold his inventions to stores like WalMart and Bass Pro Stores. Jim now helps other inventors through his inventor consulting business, as well as work as a self-employed salesman. Jim wanted to share his invention story and the things he learned along the way with the inventors at InventorSpot.com in a series of articles. His first was Advice from the Inventor of the Rod Floater . Here's his second article:
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The Importance of Getting a “Patent Pending” for Your Inventions
In the early 1980s, when my brother-in-law and I wanted to get our fishing accessory, The “Rod Floater” marketed and first attempted to do so through an invention company, they did not encourage us to apply for a patent. This was one of those red flags to look for that can tell you whether or not an invention company is legitimate or not. If they don’t encourage and actually almost discourage you from getting a patent, this is not an invention company you should consider using.
In our case, the agent with the invention company that corresponded with us, including by phone, to get us interested in their services, told us that applying for a patent was not really important because many products out there on the market, had patents obtained for them, such as the “Mr. Coffee Maker” and lots of copycat products evolved despite the patent. This information the invention company agent gave us, was somewhat perverted because he failed to include the very important reasons why getting a patent pending for inventions that are going to be submitted to industry are so important.
First, a patent pending (applied for and waiting for approval), consists of the patenting agent or attorney first doing a "patent search" to see if inventions of the same concept or design have already had patents applied for them. If it is found that patents have already been applied for, an inventor who attempts to market a very similar product would risk legal liability for patent infringement (having a copycat product) should they continue an attempt to market their invention. It is obvious to see how this first step towards getting a patent pending is valuable.
Also, keep in mind that once you have a patent pending, this can be noted in print on your product-invention’s packaging and protects you while the patenting process is being completed. Even if for some reason a patent is later denied, this is not usually determined for many months and gives an inventor a protected jump on any competition that might try to crop up in the mean time.
Second, some companies and also retail outlets, who look at new products for consideration to market them actually require that they have a patent pending status or they will not review them! In our case, the invention company had already disclosed our invention to some of the companies they claimed to be submitting it to and because of this, we were required to change the design of the Rod Floater, so that it met the definition for a different design from that we had allowed the invention company to run with originally. In our case, a design patent was our best option because the concept of floating fishing rods via a flotation device, had patents already granted for them but many of these had long expired. Our design to also float fishing rods was unique, especially when we greatly improved it from the more crude design we started out with. With our patent pending status, we now had more companies who would be willing to consider carrying our product invention.
Keep in mind that patent law states that you cannot disclose your product to the public, more than one year prior to applying for a patent or you may not be allowed to obtain a patent pending for it. Some inventions would be more difficult than ours was to change enough to get around this law, should an inventor publicly disclose theirs and then later decide they want to get a patent pending.
Finally, the importance of a patent simply prevents the outright theft of your design or concept! I actually had an experience in this area that was negative to say the least! I had a product for hunters I had invented back in 1996 and I used a patent agent to do a patent search on the device for me and the search results gave me the go ahead to continue with applying for a patent pending. Well, I instead decided on this particular invention, to go through with a marketing attempt, simply by filing the invention under the U.S. Patent and Trademark Office’s “Disclosure Document Program”. This program simply gives a date of conception which means they keep your described invention on file for two years at a very small fee (at the time it was $10.00) but it does not in any way protect your invention. Unfortunately, my invention for hunters was stolen by the buyer of a large store chain and I found this out by seeing my product I had submitted to him, months earlier on their shelves. When I called the company who was manufacturing it, posing as a hunter-customer, curious of how they came up with this great product, the rep with the company freely told me that this store chain buyer had called them, saying an inventor in Oklahoma (me/my state at the time) had submitted it to them but that it was not patented, so they should “knock-it-off” (manufacture) it for them. This is how I lost that particular invention and afterward I had to live with seeing it in lots of different store chains, knowing I had lost my own opportunities with it!
In my opinion one of the purposes of the Disclosure Document Program, is simply a way for an inventor to prove they conceived the idea, should it take them a while to obtain finances to apply for a patent pending. If in the mean time, another inventor applies for a patent, the inventor with the disclosure document could have a patent attorney refer to this dated document and determinations could be made from there. How such a case would turn out is anyone’s guess but there is no guarantee that the dated disclosure document would result in the inventor who had it filed, in being allowed to apply for a patent pending. I have mentioned this program the Patent Office offers because some invention companies will actually tell potential clients that this document is all that is really needed for them to attempt getting inventions submitted to industry for inventors. In reality, the invention company who suggests this, is not wanting the inventor to be tied down to patent expenses, rather than having finances available to pay their fees to assist the inventor. Certainly this is not true of all invention companies and there are quality companies out there that assist inventors but this is a major area to be cautious about in dealing with one.
There is such a thing as entering licensing agreements with manufacturers that include a clause stating that they (manufacturer) will apply for a patent on an invention they take on from an inventor and the expenses will be theirs however, an inventor would usually require a manufacturer to first sign a “Non-disclosure, Non/use Agreement”, in advance of reviewing such an invention that does not already have patent protection for it. This is extremely risky, despite use of such a document and in my opinion, Non-disclosure, Non-use Agreements, are better used when having potential investors look at an invention, who will actually participate in financing the invention and patenting or such a document can be used when attempting to find a manufacture to make a prototype (working model) for an inventor’s-invention and the inventor does not wish for the invention to be publicized at such an early point, even if a patent has been applied for. These are better purposes for Non-Disclosure, Non-use Agreements, in my opinion and they should not be used in attempt to protect a non-patented invention.
These are some of the major reasons why getting a patent pending is so important but applying for a patent also tells companies you may submit your invention to, that you have full commitment and belief in your invention. The way some of these companies may look at this is that if you don’t have enough belief in your invention to apply for a patent, why should they?
Remember these things inventors and don’t make the same mistake that I and many others have made in not getting your inventions protected through a patent pending!
I look forward to sharing more information through future articles and is my hope that my experience will lend to helping inform inventors through this great website!
You can find out more about my inventor services here in the Inventor Services directory.