Asked 8 months ago - Clay, NYFlag
I have an idea for a product. i am not sure what to do from this ponit forward. can i go forward without a patent and to what degree dose a patent pending cover my product?
What you need to do is make sure that you have more than an "idea" because patents protect implementations of the "idea," not the idea itself -- in a patent application you need to be able to describe for someone how to make and use your invention. In other words, the general question would be: if you gave your patent application to a likely competitor in the field, could they make and use your invention in a relatively straightforward manner in a reasonable time. If the answer would be NO, then you need to do more work to make the "idea" more concrete. For example, my "idea" might be teleportation of a human, but that is not enough. I need to be able to describe and teach the public in that document how to accomplish teleportation of a human in sufficient detail that would allow them to make and use a device to do so.
A competent patent attorney can help you determine whether you have passed beyond the "idea" stage. Assuming you have something that is concrete enough, (in overview) an application would be prepared and filed with the Patent Office. It would then be examined for compliance with the Patent Statute that the claims of the application meet the novelty and non-obviousness requirements (which might entail some measure of give and take between you and the Patent Examiner as to what the proper scope of protection would be). Then, if you are able to agree on a scope that meets the requirements, a patent would issue. If you cannot establish such a scope, you would not get a patent.
A short answer to the "cover" question is that it would "cover" your product to the extent that any claims in the patent are fully met by the product (that is, to the extent that it would be fully described by at least one claim). In other words, the claim could conceptually be thought of as a "checklist" which, if your product satisfies every item in the checklist it would be covered. If any aspect of the claim is not met by your product, it would not be covered.
In addition, claims need not cover the entire product, they could (and likely should) be configured to cover those aspects that are, by themselves, novel and non-obvious as well as structures that might incorporate those aspects. To give an example, if you come up with patentable transmission for a car, you would likely patent the transmission itself, a car containing the transmission, possibly a car with an engine coupled to the transmission and, in the broadest sense, might also claim a vehicle containing that transmission.
Talk to a competent registered patent attorney, they will guide you appropriately.
You really need to speak with a local patent attorney. From what you have provided, no substantive answer can really be provided. For some general information on patents, see: http://www.uspto.gov/patents/resources/general_...
Rule Number 1 - don't tell anyone about your idea! Public disclosure may jeopardize any potential rights you might have to patent protection (for example, do not disclose what it is on this forum; do not talk to you neighbor about it, even if he seems really cool and helpful; etc...)
Now that we've got that squared away - I strongly suggest you seek the advice of a patent attorney, registered with the United States Patent and Trademark Office. They can represent you in preparing and filing a patent application. Not all intellectual property attorneys are patent attorneys, so make sure you seek out someone with the proper credentials. To save yourself some time, and to make that meeting most productive, be prepared to explain to the attorney why your idea is new and has never been done before. If there are things in the field similar to your product, why wouldn't your product be obvious to produce in light of what is already known?
In regards to your "patent pending" question, be aware you can't actually put "patent pending" on a product until you have filed an application. Once the application is filed, a "patent pending" label is useful for putting potential infringers on notice that a patent application has been filed, and if you copy this product and I get the patent then you risk being sued for patent infringement. Keep in mind, however, you cannot actually sue someone for infringement until the patent has actually issued. That most likely will be several years from now because it will take several years for the patent and trademark office to review your application because of the backlog.
In regards to cost - that will vary from attorney to attorney, which will further vary from region to region, which will further vary depending on your technology. But patents are not cheap! You can always proceed to sell a product without a patent (after all, it's the time honored American tradition of being able to make something and sell it on the street corner for profit!) but it might benefit you to talk to a patent attorney anyways to be sure your product is not infringing someone else's patent. And remember rule number 1 - don't start disclosing it unless you're sure you don't want to pursue patent protection.
It is time to lawyer up with an IP attorney. A patent pending covers your product to the extent the patent application that is pending describes the "invention" (not idea, invention) in the required manner and complies with the patent law, which for a provisional patent application would also mean that you have to follow it up with a nonprovisional patent application within a year and that nonprovisional will need to have patent claims. For a nonprovisional patent application the invention is "covered" by the claims of the patent. If they are broad and define over the prior art, you have "broad coverage" and a "broad patent". If they are narrow, you have "narrow" or perhaps even "no significant" coverage. YOU cannot write a decent patent claim, and don't let anyone tell you otherwise. Patent attorneys study for years to learn how to write them and have to pass an excruciatingly hard exam to prove to the patent office that they do know how to write them before we get to become "registered patent attorneys". So, that is what you are looking for, a registered patent attorney. And, you want one that has a technical background in your technology, unless it is simple, as that registered attorney is going to be the one to try to convince a patent examiner (who IS an expert in the technology) that your invention is new, useful and NOT OBVIOUS to a person having ordinary skill in the relevant art who has a complete knowledge of the prior art, all 8,000,000+ patents (the mythical person we registered patent attorneys call a PHOSITRA or PHOSITA). It is a daunting task to get broad patent coverage, and you MUST have a patent attorney to have a decent chance. Not doing so would be your BIGGEST mistake and make everything else you do for naught.
So, bottom line, the best way is to get yourself to a registered patent attorney and to do it pronto.
There is no requirement that you patent your product in order to market/sell it. However, a patent can provide you with competitive advantages.
When you file your patent application, your status is "patent pending." However, this only gives notice to others of your pending patent rights. It does not give you the right to stop infringers.
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