6 Most Common Patent Mistakes Made by Small Businesses

As we enter a new year, it’s important to take stock of what worked for you in 2020 and what didn’t. There are plenty of business owners who simply are not ready to give up on their ideas. This is why they try to patent them.

Patent law is complex enough that people inevitably face difficulty when they try to do it themselves. For some, it is best to invest the money and call up an intellectual property lawyer Houston. For others, it is better to invest time into educating themselves on patents.

Without knowing anything upfront, the language of patent law can be tough to decipher. However, it’s a process of understanding. As you gain understanding, you’ll find patent law will make more sense. For a head start, here are 10 of the most common mistakes that small businesses make when trying to patent their ideas:

Mistake 1: Not Having Enough Money

Filing a patent is a substantial business expense. It’s no different from, say, a startup cost. Depending on the size of your business, and the kind of patent you’re applying for, the initial filing fee with the U.S. Patent and Trademark Office (USPTO) ranges from $45 to $280. Some pay for 

This is not the only fee you need to pay for your patent. In the United States, patents last 20 years from the date of filing. To keep your patent active for these 20 years, the USPTO requires three maintenance payments at different intervals: one at 3-3.5 years after issuance ($500 to $2000); another at 7-7.5 years ($940 to $3760); and the last at 11-11.5 years ($1925 to $7700). If you’re late, expect to pay more.

In the long run, the total USPTO fees can run you up to a low 5 figures in expenses, so be careful to prepare and budget accordingly.

When working with a patent attorney, they’ll also charge more for their time and expertise in research, patent searches, and filing the patent on your behalf.

Mistake 2: Not Clearly Describing Your Invention

To make it distinguishable and clear that it is novel, the language of a patent must be very clear. Whether it’s about the design or function, the written description must go to great detail to paint a complete picture of the unique functions and attributes of the design. Otherwise, either the invention will be unpatentable, or it will be found ineligible after filing.

Mistake 3: Not Doing a Patent Search

You don’t know if your invention is unique until you know something about the market. With a patent search, you take a deeper look at existing patents and whether a similar invention or concept has been patented.

Even with successfully registered patents, not doing a search will risk you a loss of revenue to your invention due to similarity, or even later rejection of your registration.

Mistake 4: Doing a Patent Search Yourself

Doing only a patent search is not an end-all be-all to determine whether your invention is truly unique. To know exactly where you stand, you must also research the overall market in your niche. That will give you a much better idea of whether you can effectively monetize your product over the competition.

This is where an attorney can help.

Mistake 5: Not Sure What Problem The Patent Is Solving

Patent examiners and courts must be clear on the problem you are solving with the invention you want a patent on. By definition, in business, every product or service is created to solve a problem. People pay money for a product or service to solve a problem – any problem, from emotional wants, to physiological needs.

When a business comes up with a new way to solve a problem, it becomes their unique competitive advantage, placing them above others in the market. As competitors lose out, they may find ways to copy or reverse-engineer your unique solution.

A patent is a tool to protect your unique solution. If you are not clear about the practical problem your invention is solving, and it is not the “ultimate” way to solve the problem – especially at a level of convenience never before known to the general public – patent examiners may not like your patent, and you’ll have less of a fighting chance in litigation.

Mistake 6: Patenting a Trade Secret

After successful registration, every patent becomes available to the public for viewing and patent searches. If you have a unique process that you wish to never disclose to the public for the life of the product, it is advisable to not patent it. These things are known as trade secrets. Patents do protect your unique product or design from competitor theft; but remember, they can only do so for up to 20 years. Once the patent expires, you cannot file for the same invention again; you can only file for an improvement or modification to the invention.

Hence, after expiration, your unique invention becomes common knowledge, allowing anyone to copy it. Coca-Cola has been successful in marketing their product without fail since 1891, more than a century ago. They have done so by keeping their recipe secret. From a marketing standpoint, this makes their product perpetually unique, as while many have tried to duplicate the Coca-Cola taste, no one has yet been able to make an exact copy of the Coca-Cola formula and its taste. 

The secret formula propelled Coke to the top of the soft drinks market. It is inseparable from their brand – and the Coca-Cola brand is arguably their most profitable and unbreakable marketing asset.

This would not be possible if Coca-Cola had tried to patent its formula.

What is the patenting process, then?

Now that you understand the mistakes people make when trying to file patents, the next step is to research the patent process for yourself, or better yet, with enough funds, save considerable time by hiring a Houston patent lawyer.

DISCLAIMER: Neither the writers of this article, nor the owners of this site, are registered to practice law. Nothing on this post is to be construed as legal advice. It is for informational and educational purposes only.

What to Look For in a Houston Patent Attorney

Intellectual property rights are a valuable intangible asset and an integral part of brand identity. The primary purpose of IP rights is to stimulate creativity by providing an exclusive right to creative inventions and works.

What Is Intellectual Property?

Intellectual property laws provide owners with the power to enforce their rights to their intellectual property (intangible creative inventions and works) in civil court. Because intellectual property shares many of the characteristics of real and personal property, associated rights permit intellectual property to be treated as an asset that can be bought, sold, licensed or given away.

A copyright grants the creator of an original literary, dramatic, musical or artistic work the exclusive right to produce, use and distribute it. When you create a piece of work, you will be granted copyright automatically. In the United States, this exclusive right is granted under the Copyright Clause of the Constitution.

A copyright owner can transfer some or all of their rights to another party by a written agreement. The transfer of ownership may not be effective if the stated description of the copyrighted work is not accurate or clear enough. 

Contracts can be formed and signed to transfer moral rights (the owner’s rights to protect usage of their copyrighted work, and their skills & reputation) as well as ownership rights. An employee could still claim rights of an author, moral rights, and rights to object to alterations to work.

How to Protect Your Intellectual Property Rights?

The scope of copyright protection is generally limited to the original work that is in the contract. From there, legislation protects developers and inventors who work hard to bring their ideas to market. The kind of IP laws applicable to a business depends on the type of asset the business has.

Intellectual property ownership also often depends on the employment status of the creators of the IP.

Intellectual property owned by one company is considered to be an intangible asset of that company. The startup company can protect its intellectual property in several ways, including a nondisclosure agreement. Many companies have their non-disclosure agreements posted on the internet for one reason or another. 

The intention of IP contracts is to allow the owner of the intellectual property rights to generate revenue from the use of their original material and thereby to encourage innovation and creativity. The use of a copyright notice on the work is beneficial but not absolutely required.

Whether or not someone infringed on your copyright or patent will depend on the scope of the claims of your IP.

Intellectual property protection supports the fundamental concept of a social contract made by the rights owner when the original work enters the public domain upon expiration of protection.

Computer programs and software are covered as literary works; as such, they are protected under federal copyright laws.

Houston patent attorneys Lloyd & Mousilli, licensed to practice in California, Colorado, Texas, the District of Columbia, and before the US Patent and Trademark Office, offers effective expert legal advice on intellectual property to businesses ranging from startups to Fortune 500 companies. The intellectual property lawyer in Houston can assist you with the registration, lookup and enforcement process of your patent, ensuring that no one else has a patent on an invention that’s the same as or similar to the one you’re looking to protect.

When filing for federal copyright protection, you will submit all relevant documents at the same time and pay the applicable filing fee. 

Under certain circumstances, portions of the owner’s copyrighted work could be legally reused in a not-for-profit manner; such use is protected by the U.S. Copyright Act in what is known as the “Fair Use” rule. The rule lists four factors which the courts may look at to determine whether the copying was fair. Fair use or fair dealing are terms used to describe some limited activities that are allowed without infringing copyright.

In the United States, in general, protection for copyrighted works exists for 70 years from the date of death of the author. An exception to this is “work for hire,” original works created by an employee for an employer; the rights of such works are generally assigned to the employer. Work-for-hire copyrights last for either 120 years after creation or 95 years after publication – depending on which of the two is shorter.

Whether you are being proactive and gearing up to solidify your IP protection, or you are battling copyright infringement that is costing you revenue, you should not delay or forego seeking professional legal advice.

The term of protection for a utility patent is a fixed period of 20 years from the date on which the application for the patent was filed.

How to Find an Intellectual Property Lawyer?

An experienced intellectual property lawyer, such as Lloyd & Mousilli patent lawyers in Houston, can help determine the appropriate type of legal protection required and assist with enforcing intellectual property rights.

A good start-up attorney can help you take the right action early so there is much less chance that someone will take legal action against you. An experienced lawyer can advise you on what is not and what is intellectual property, so that you understand your legal rights with regards to a project.

The patent application must contain a written description of the invention and how to make and use the invention in such complete terms as to enable others to make and use it.

An infringement lawsuit may be filed in connection with intellectual property that is protected under state or federal laws. The particular remedies for infringement vary depending on the types of intellectual property at issue.

What Is a Patent?

A patent is the exclusive right to make, use or sell an invention in a country. A patent owner has the right to decide who may or may not use the patented invention for the period in which the invention is protected.   

To obtain a utility patent, which is the most common type of patent, the invention must be new, useful and nonobvious. A patent application is filed by describing the invention to its full extent including the method of practicing the invention. When an invention is created, its author can apply for a patent to a Patent Office. In the United States and most other countries, a patent is granted for 20 years from the date on which the application was initially filed, after which it may no longer be enforced.

A patent will provide a wide range of legal rights, including the right to possess, use, transfer by sale or gift, and to exclude others from similar rights.

You may not file an application for patent rights in most countries after your patent has been publicly disclosed. The protective order shall provide for appropriate procedures to ensure that confidential, private, proprietary, or privileged information contained in such records is not improperly disclosed or used.

Trademarks are marks used to distinguish goods or services of one person from similar goods and services of another person. Our recommended “Patent Attorney Houston” also has lawyers that specialize in looking up and registering trademarks; for more information, we strongly suggest booking a free consultation with them so they can connect you with the right attorney for your business needs.