The inventors dream...

Steve O...

Generally you don't need a prototype before you patent something. It's usually a good idea to make sure that the bugs have been worked out, but unless you're trying to patent a perpetual motion machine or something along that line, a prototype isn't needed to get a patent. A prototype will help the attorney understand just exactly what it is about your "thing" that is patentable.
It's possible to sell an idea and leave it to someone else to patent, but that's fairly rare and in most cases probably not a good idea to try to do. Those that you try to sell it to may just rip you off, especially if they don't think it's patentable or that the chances of you patenting it are low. Additionally, most places won't listen to anything you say or look at what you send them unless you already have a patent. They don't want to be dragged into a lawsuit if they already have something similar brewing and won't want to pay for an idea to try to patent themselves only to find out that it's unpatentable over the prior art or that only a very narrow patent would result.
Steve

Barc2004

Thanks for the info,

So basically to get someone to buy the idea without the patent, you'll still need to prove that the idea is able to get a patent, hence all this research is still needed.

Its such a shame its seems like such a good idea but the more i learn about patents, the more it seems like the idea can't be patented, is it possible to patent a method? For example, in relations to the movie theaters industry, (for this example well assume that the idea of drive in movies are unheard of), how would i go about patenting the idea of drive thru movies?, the movies are the same its just the method which people view the movie which is different/unique.  i realise that every situation is different but i think if i had the answer to this i would better understand how patents work.  Or more importantly, are there some idea's that are just not patentable?.

Once again any feedback would be welcomed.  

M. Arth...

If you have something good it must kept secret untll is is protected.

The biggest problem is there is a $100M a year industry getting patents for inventors where only one in ten thousand get back more than they pay.

What is even worse there are some Registered Patent Lawyers will get patents for inventors without considedation of the reality of what the invention is. The one in ten thousand odds could include this practice.

That is why I start with a Reality Check? to save time money and worry.

JimIvey

I'll try to take a stab at answering your question.  I see generally two concerns.  One is how to take an idea to someone with the means to take the idea to market and to have that someone pay you for the idea.  The other is how to get a patent with little more than an idea.

How to make money from an idea:  First, the idea has to be one they want to use.  Everyone thinks their idea will "make millions" and maybe yours will.  But your audience may not see it that way.  But that's more marketing and less IP so I'll let someone else give you "selling" tips.  

Second, you have to communicate the idea in such a way that they can't use it without paying you.  Having a patent is one such way.  Mr. Auslander alluded to another: trade secrets.  Those are the two big ones.  Copyright is big, too, but depends on the type of information you're trying to protect.  The nice thing about trade secrets is that they can last forever.  The not so nice thing is that they're easy to lose.  The hard part of trade secrets is that it requires the other side to agree to keep your secret secret.  Many companies just won't agree to that.

The particular path that makes the most sense for you depends on your idea and the particular industry.  Different industries have different traditions in receiving new ideas from non-employees.

How to get a patent:  A patent is basically this: if you can add to the whole of publicly available knowledge, you can prevent others from exploiting that added knowledge for a limited period of time.  So, as a preliminary manner, you have to be able to add to the whole of publicly available knowledge.  It's not enough that no one else has a patent on your idea.  The idea has to be novel and non-obvious in view of the whole of publicly available information.  Of course, that's an over-simplification, but it gets the main idea across.

Now, there are a number of ways to get money out of patents.  Some people start with trade secret protection, get a company to license the idea and fund the patent work.  The benefit to the company is usually an exclusive license to the idea -- essentially the benefits of a patented technology without any R&D costs.  Another is to get the patent yourself and wait for others to stumble on to the same idea then sue them for infringement.  Between those two extremes are a variety of other options -- like selling/licensing a patent application or an issued patent.  All of those options involve the other guys adopting your idea -- either by your persuasion or by coming to your conclusions independently.  That's the big risk in all of this -- you get nothing (or close to it) if no one adopts your idea.  The path that has the highest potential return and the highest risk is getting your own patent and suing companies years from now.  The one that has the lowest risk is getting a company to license your idea and fund your patent work.  That's also the hardest to do from what I understand, though some have been quite successful at doing just that.

I hope I covered enough to be of some help.

Regards.

M. Arth...

Ivey (Jim),

It looks to me as if you give an inventor a fair shake too.
The difference is that I call it a Reality Check?.

Barc2004

Thank you so much for your feed back it is really helping, I have been spending a couple of hours on the internet every night trying to learn all i could about how to get my idea working for me and by far this forum/site has been the most helpful.  I now have three questions that have arisen from the disscusion so far,

Question One, What is Reality Check??  Is it a book or a site,  I tried to google it but to no avail.  I want to read/complete this Reality Check? before going any further, i have seen many references to it and think i should try it also.

Question Two, "The biggest problem is there is a $100M a year industry getting patents for inventors where only one in ten thousand get back more than they pay.".. according to this quote only one in ten thousand get money back for an idea.  I was wondering what the main cause could be.  I could imagine that one cause could be the patent not covering the idea adequately and people using the idea but in a way where they weren't infringing the patent, another could be the idea was not worth investing in because the return wasn't much.  I just want to know what the main cause would be.

And finally if i were to invent a piece of software which added A to B is that software able to be patented and if so, if another inventor also created software that added A to B, but reverse engineered it would that infringe my patent?

Once again thank you all for your quick and detailed responses to which i'm very greatful

Sam Adams

Michael...

You can chat with our attorneys and/or paralegals by going to the following link:

www.aplegal.com/click2.html

The short answer is that a patent attorney should be more than willing to sign a confidentiality agreement.  A patent search is the first order of business, for without it, you have no idea how patentable your concept is.

Regards,

Michael

JimIvey

can answer question one for you.  I believe it's his trademark for his initial patent counseling which attempts to determine whether your invention is likely to bring in enough revenue to justify getting a patent in the first place.  I honestly don't know how he does it since it requires as much market knowledge as it does legal and technical knowledge, not to mention thorough knowledge of the applicable prior art.  As far as I know, he hasn't addressed those concerns here but might do so to a prospective client in private communication.

As for the one in 10,000 number, it's not true.  Don't believe it.  I've challenged everyone I've heard quote that number to come up with authoritative support for that number and no one has even responded -- even with lame, amateurish reasoning, let alone a real source of authority.  It's a myth at best and possibly even a lie.  Don't believe it.

The problem I have with the number is that my experience doesn't jive with that number -- most of my clients make their money back.  However, you should understand that most of my clients are companies that make and sell their patented products and services.  Evaluating the worth of a patent in this instance is quite difficult.  For example, I have a client who had a portfolio of patents and threatened infringers with law suits.  Most of them stopped infringing activity.  What's that worth?  It depends on how much inventory those parties could have made and sold at undercutting prices.  Since it was stopped, we don't know what the value was.  

So, how do you measure the value of a patent that others quietly avoid?  You don't see licensing revenue.  You may not even know that the competitors are shying away from competing.  Yet you see a real benefit in the marketplace.

I think what the 1:10,000 number is supposed to reflect is that it's extremely difficult for an individual to get money from a manufacturer/reseller for little more than an idea -- patented or otherwise.  I still haven't seen any authority for the number itself, but you should be very aware of the difficulty of making money in this route.  While I think the number is a bit of hyperbole, you should not underestimate the difficulty in taking this route and the number is meant to illustrate that high level of difficulty.

Having said that, I'd still like to see some authority for the number.  And citing some newspaper/e-zine article in which someone repeats the number is not authoritative.

As for your hypothetical, I can safely say that adding two numbers together is not patentable (not novel).  However, let's assume I've misunderstood that part of the hypothetical and assume that adding A to B is both novel and non-obvious and that you were able to get a patent on it.  Independent creation is no defense to patent infringement.  Neither is reverse engineering.  If your competitor does what your claims describe, she infringes -- however she came to do that.

Lastly, I'll just offer a different perspective on confidentiality agreements (CDA/NDA) signed by attorneys (patent or otherwise).  In my 13 years of practicing, I have not signed a single CDA.  As drilled into my head by my ethics professor, comingling client and firm funds and violation of client confidence result in "VIRTUALLY AUTOMATIC DISBARMENT."  That's a far more stringent punishment than could be meted out for violating a contract (in my opinion).  

Is there any harm in signing those agreements?  No, of course not.  However, I find my work more rewarding when my client fully appreciates the nature and value of what I do.   Being asked to sign a CDA is a sign that the client doesn't understand the nature of legal services.  It's not bad in and of itself; it just tells me I'm going to have to justify my work, decisions, and perhaps my professional existence.  Insisting on a CDA after the above explanation is, in a way, ignoring my legal advice.  At the very least, that suggests a problematic legal relationship.  One of my fears is the spector of a malpractice suit when a client ignores my advice and bad things happen.  

For what it's worth, these concerns just don't exist with my corporate clients.  The principles are used to dealing with attorneys and all of this is understood.  That lets me focus on doing good work and worrying less about misunderstandings.

Now, does that mean I'll refuse to sign CDAs in the future?  No.  But be prepared to hear what I wrote above.  If I lose potential clients as a result, so be it.  

One last qualification:  I have no idea how the ethics rules by which attorneys are bound apply to patent agents.  Perhaps some of the agents out there can answer that.

Regards.

M. Arth...

Greenberg and Ivey,

You both know well that a lawyer does NOT HAVE to sign a confidentiality agreement since they could be disbarred if they violated a legal confidence.

It is also extra time and work to do so. I have signed the when necessary.

It is clear that JUST getting a patent can be a waste of TIME MONEY and WORRY. I cannot know what patents are going to make money BUT inventors ought to be advised, and can be advised when THEIR patents even if they get them may be WORTHLESS.

I can't predict the future of a GOOD patent, and have seen even good patents not make money, BUT I can predict a situation IMPOSSIBLE to protect or PATENT and save cllients time, money and worry that includes ELAINE's Workshop? E arly L egal A dvice I s N ot E xpensive? and Reality Check?.

My menu is the client's need and welfare not just out there to do a job and get a fee which is easy to get. In some instances a weak patent may be an insurance policy to a business client which a client needs and must understand.

There also may be INTELLECTUAL PROPERTY alterntive solutions, that are in the Reality Check?.

Corey

"And finally if i were to invent a piece of software which added A to B is that software able to be patented and if so, if another inventor also created software that added A to B, but reverse engineered it would that infringe my patent? "

 Correct me if I am wrong.  If Product B is already out there and still under patent protection, and you have an idea to add A to it.  You can recieve a patent, but you won't be able to sell it without either licensing it to product B or Selling it to them for royalties.