A reader wrote in asking, "How do inventors successfully 1) market, 2) distribute and 3) grow profit from unpatented or unpatentable ideas?" The reader had an invention that was unpatentable in the United States because it had been publicly disclosed for over a year.
While the reader was in a position she had not intended to be in, a growing number of inventors deliberately forgo/delay patenting and take their product straight to market. Alternatives to patenting an innovation include: obtaining a trademark on the name, or copyrighting the rules or instructions. Rubik's Cube or Coca-Cola were never patented, good trademarks and great marketing brought those products success. Trade secrets are also an alternative, if your product is nearly impossible to reverse engineer. And if you can't patent your invention, maybe you can patent an accessory or disposable that makes your invention better.
For further information check our "Alternatives to Patents" directory and consult a intellectual property expert.
Thanks for the great advice. There are many ways to take new products to the market, but nothing helps more than an energetic and enthusiastic inventor!
Be aware, marketing your invention may preclude you from getting a patent. In the US, you get a one year grace period to file your patent application. Canada has a similar grace period, except that you cannot rely on priority from the US application. Most other countries have an absolute bar if you disclose before you file a patent application. The simplest way to protect yourself in the event that you want to file a patent in the future is to file a provisional application yourself. The filing fee is only $110 for a small entity. The provisional must be converted into a utility application within a year, which should give you enough time to see if your invention has legs.
Alternatives to patents – so many misunderstandings and myths.
In his excellent book “one Simple Idea” (McGraw-Hill NY) well known author and innovation advisor Stephen Key illustrates how he and others have successfully marketed unpatented ideas.
If only Patenting was as easy as simply Registering / affixing a Copyright type Notice (practicality?) – even that is not mandatory to assert Copyright in all countries – or a simple World Patent – maybe one day ? – though numerous countries (currently 76 but not US) do have in effect, shorter term second-tier Registered Patents lasting up to 15 years in addition to their Standard 20 year patents, many granting automatically at far lower cost / less rigmarole + some countries provide automatic Unregistered Design Rights.
Currently there really isn’t an alternative to patents – which provide inventors or assignees with their best / only means of taking action against copiers. For many or most inventors, selling or licensing the patent is the preferred commercialisation rout and without a patent there may be less or nothing to license. – even a great idea may be harder to launch or become unviable without a patent – certainly not easier – on the other hand it can be done – the majority of products available are not the subject of current patents. YES Lisa – energy, enthusiasm + TENACITY are vital.
Stuart Fox
Inventors Association of Australia
Myths – further to my previous post ..
The original article + legend goes that Coca-Cola was never patented (as that would entail revealing the formula) and Coke is a recipe / mixture – patentability may be arguable + even if it was patentable / patented (most or all of the ingredients were already known in beverages by the time of its claimed invention in 1886) how much change would be required to circumvent a (or THE exact recipe patent) ? – in any case the formula was altered over the years. Trade Secret ….. many analysed the drink since its launch – including by food chemist student Helen Geffen in 1930 who complained re the recipe following which two ingredients were changed to comply with concerns. The drink was imitated and some say they prefer the imitations (it substantially / often hinges upon which drink individual consumers imbibe first / become used to) – there are recipes available and the attitude of the Coca Cola Corporation is alleged to be – “so what – they cant call it Coca-Cola” – arguably the worlds most valuable Trade Mark = marketing tool – and inherently an answer to the query ‘ how to market unpatented ideas etc.’
Again – contrary to myth – The Rubik Cube, invented in the early 1970’s WAS patented, both in Hungary – granted in 1975 and in US in 1983 for an improved version. Others achieved similar objectives both before and after Erno Rubik – which illustrates issues in patenting the objective of an invention rather than just the means of achieving it – and Rubik’s licensee Ideal Toys, lost an infringement case brought by an earlier inventor, in 1984 and upon appeal in 1986. This emphasises not only the importance of filing a patent application as early as practicle but also sceptically querying and analysing monographs which appear in general life – especially the questionable stories virally abounding in the inventing arena.
Stuart Fox
Inventors Association of Australia
AND…
Approximately 40 countries make life easier for inventors by having Provisional Patents and Grace Periods – but not in Europe for the latter, which raises the importance of US inventors filing at least a Patent Application accompanied by a Provisional Specification (after first conducting a prior product and patent search) rather than relying only on the US First To Invent System (which in any case ends in 2013) if they have interest in overseas rights.
Whilst it is easier to get someone else, either a Patent Attorney or Agent, to search and prepare a patent application, naturally there are fees (fairly in line with other professionals such as dentists and doctors / specialist) and of course many inventors cant afford these costs (so the invention languishes whilst its benefits are unavailable) or simply prefer not to reveal their idea prior to obtaining official patent pending status. On the other hand Patent Offices assert inventors rights to do it themselves.
Whilst having debatable practicality for corporations, many individual inventors – with help – are able to conduct their own search and prepare their own (pro se) ‘enabling’ patent application – its not rocket science (e.g. at least one country permits patent applications by lower cost practitioners who are not required to be registered) and mentoring help is advisable since when filing, patent offices don’t advise applicants if the specification is adequate – that may not occur until much later – sometimes too late – so for do it yourself applicants its important to know how to-self asses their home grown specification – very simple when you know how – some patent practitioners as well as inventors organisations are willing and able to help.
Stuart Fox
Inventors Association of Australia
and finally..
For the Non-Provisional / Regular Application filing – required within 12 months of the Provisional Application to maintain the original Priority Date, Claims are needed and since this is what Patent Offices allow / grant or otherwise, correct / optimum wording is vital – many Patent Attorneys will review / help there too.
Uniquely, USPTO examiners – very experienced in scrutinizing Claims – will provide MORE help for unrepresented inventors – they are officially bound to write Claims they WILL allow (“for free”) for pro se applicants (conditions) – some inventors / advisors feel this facility alone may be a good case for self lodging applications – even those prepared by others. Patent Office examiners in some other countries may help unofficially.
For those going it alone the Provisional Specification costs reduce – e.g. to $125.00 (small entity fee) in the US and $80.00 in Australia to provide an excellent level of internationally recognised patent priority date rights – a focus of patents – for the invention described, regardless of where lodged – upfront filing fees are not mandatory in all countries, in effect providing wonderful assistance for impecunious inventors and / or an optional free ‘reconsideration’ period although late “surcharge” fees may apply in US (but not Australia).
One countries patent office facilitates an initial application which is free for the first year – why not – Provisional Systems only involve registration, not substantive examination – they also provide an early, very authoritive search report by an examiner for an official fee of approximately US $200.00 (depending upon current exchange rate) – very helpful prior to further effort and expenditure.
Inventors considering early foreign filing should appreciate that some countries including US, impose foreign filing restrictions – licenses / time lapses.
Stuart Fox
Inventors Association of Australia