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How do i go about getting a patent on an idea on a food product

Springbrook, WI |
Filed under: Patent infringement

i would like to avoid a large fee with an attorney and do it on my own

Attorney Answers 5

Posted

Q: "i would like to avoid a large fee with an attorney and do it on my own"
A: Problem is, however, that you don't know how to do it and likely don't have time to learn, otherwise you would have "JD" and "Registered Patent Attorney" on your resume. You might like to avoid a large fee and do your own brain surgery, too. Getting your own patent without using an attorney is no smarter.

Q: "How do i go about getting a patent on an idea on a food product"
A: You hire a registered patent attorney so you get value for your time and effort and expense. You don't know what you don't know. One of the things you don't know is how you go about getting a patent and whether you even CAN get a patent on your particular food product. Do you know if it is even a patent you need, or would you be better served getting a trademark and forgetting about the patent? Do you know if your food product is well enough defined to even file a proper patent application? Do you know what a patent claim is and the difference between "comprising" and "consisting"? Do you know the relevant law on "means for" expressions or even when and where they are used. Do you know about using "exemplary embodiments" and why that is important? Do you know the parts of a patent application and the difference in strategic approach to writing each part? Do you know whether you need method claims or apparatus claims or both and how to write them? Have you done a patent search? If you cannot answer every single one of those questions with relatively complete confidence you have no business preparing and filing your own patent application and need to get one of us who can.

You could buy the book "Patent It Yourself" by David Pressman. It is about 500 pages long and full of detail, the most important of which is his admonition DON'T do it yourself.

I litigate patents and I can tell you that doing one on your own is an almost certain dead end losing proposition. I can relate many, many horror stories and virtually NO success stories by do it yourself patentees. I have a client who has 1400 patents and he still uses patents attorneys for every single application. Perhaps it helps explain why he is a multimillionair. You might do well to emulate him.

So far, this is free to you. Until you pay a fee, I am not your lawyer and you are not my client, so you take any free advice at your sole risk. I am licensed in IL, MO, TX and am a Reg. Pat. Atty. so advice in any other jurisdiction is general advice and should be confirmed with an attorney licensed in that jurisdiction.

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5 comments

Bruce E. Burdick

Bruce E. Burdick

Posted

Do you know the significance of March 16, 2013 and what FTF stands for? You could lose your patent rights if you don't. A registered patent attorney will know and will have a plan.

Gerry J. Elman

Gerry J. Elman

Posted

Bruce: As long as you started your comment with "Do you know the ..." it reminds me that the US PTO just announced that it will be opening a branch real soon now in .... San Jose. So when we want to get together with the Examiners there, we'll be asked .... . . . "Do you know the way to San Jose?" http://www.youtube.com/watch?v=uiB02XWTwI4

Bruce E. Burdick

Bruce E. Burdick

Posted

Cute. Or mosey on down to Motown, or who shot JR?, or Rocky Mountain High. >

Gerry J. Elman

Gerry J. Elman

Posted

You got it!

Thomas O. Moens

Thomas O. Moens

Posted

Thank you! This answer could be used for so many different questions attorneys are asked . . . .

Posted

Coincidentally, blogger/patent attorney Gene Quinn posted a couple of days ago his own answer to questions such as yours on his helpful blog: IP Watchdog.

I also agree with my colleague Bruce Burdick's answer regarding David Pressman's book Patent It Yourself. That excellent book, however, hasn't yet been updated to incorporate changes to patent practice mandated by Congress in September 2011 (the America Invents Act) nor the more recent court decisions such as that of Mayo Collaborative Services v. Prometheus Labs (U.S. Supreme Court March 20, 2012). The times they are a-changin'.

This posting is intended for general education and isn't "legal advice." It doesn't create or evidence an attorney-client relationship. You are encouraged to engage an attorney in the pertinent jurisdiction for confidential legal advice on matters of any importance.

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1 comment

Bruce E. Burdick

Bruce E. Burdick

Posted

Dave Pressman does have an article for users of his book at http://www.intellectualpropertylawfirms.com/resources/intellectual-property/patents/america-invents- to explain the AIA, but I agree that is not a satisfactory substitute for an updated edition. Knowing Dave, I know the 16th edition is not far off, but Attorney Elman is absolutely right to urge caution in using even the lates (15th) edition of Patent It Yourself.

Posted

You hire a qualified patent lawyer and they advise you if you can even patent an idea on any product. Ideas are usually NOT protectible by federal patent law, or for that matter, by copyright or trademark law - only sometimes by state implied contract law, and sometimes by state trade secret law. Where food is concerned, there are advertising issues and FDA compliance issues to address as well.

Sorry, but there's no getting around spending some money to make some.

Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.

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1 comment

Gerry J. Elman

Gerry J. Elman

Posted

Pamela - you've added some valuable points to the discussion. Especially after the Bilski and Mayo decisions of the Supreme Court, if anyone previously thought that an "idea" might be patentable, we've been instructed otherwise. And a particular pitfall of do-it-yourself lawyering is that even if a questioner accurately identifies the part of the legal elephant he's feeling, there could be other issues that are paramount.

Posted

To answer your question, I assume that you genuinely have a patentable invention. Unfortunately, I also cannot recommend that you represent yourself before the USPTO - there are too many pitfalls that could seriously undermine the strength of the patent(s) that you hope to get issued. The good news is there are many qualified solo practitioners that take cases from individual inventors at more reasonable fees and may be willing to negotiate fixed fees for drafting and filing the application. At least at this stage, you will have some level of predictability regarding what your costs are. Going forward, the ongoing negotiations with the patent examiners (what we call prosecution), is more unpredictable and can be expensive. If you have a well-drafted application to start with, you might avoid some costly missteps during prosecution.

Beyond the prosecution stage, I assume that you hope to make money with your invention. Usually, single inventors look for a business partner with the resources to bring their inventions to market. The patentee usually gets paid by either selling their patent or licensing it for some amount of royalties. If your application is subpar, you may have trouble finding a business partner or your invention may be stolen outright.

I hope this helps!

Disclaimer: I am not familiar with your case or subject matter. The answer provided above is general and should not be construed as providing legal advice. I advise you to seek the advice of qualified counsel.

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Bruce E. Burdick

Bruce E. Burdick

Posted

"Unfortunately, I also cannot recommend that you represent yourself before the USPTO " - That is fortunate, not unfortunate. ( :-)

Posted

Large firms = Large fees
If you hire a good patent attorney, the help you get, circumstances + tax savings might justify the fee. Especially at license time.

Please remember to designate your question's BEST ANSWER.

Please remember to designate your question's BEST ANSWER.

Curt Harrington
Certified Tax Specialist -- State Bar of California Board of Legal Specialization
Electrical-Chemical-Mechanical Patent (Intellectual Property) Attorney
(562) 594-9784
http://patentax.com/curt/index.html
About Curt: http://patentax.com/curt/index.html

Curt Harrington Patent & Tax Law Attorney Certified Tax Specialist by the California Board of Legal Specialization PATENTAX.COM This communication is general information and not legal advice, and does not create an attorney-client relationship. This communication should not be relied upon as any type of legal advice. Please note that no attorney-client relationship exists between the sender and the recipient of this message in the absence of either (1) a signed fee contract and (2) remission of an agreed-upon retainer. Absent such an agreement and retainer, I am not engaged by you as an attorney, nor is any other member of my law firm.

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