“Starting the patent process on a limited budget doesn’t mean you can’t or won’t succeed, it means you are being responsible. Of course, your budget must be realistic—you cannot expect highly qualified professionals to work on your behalf for free, and you must be willing to put in a lot of sweat equity along the way.”
If you are an inventor new to inventing, you undoubtedly believe you’ve come up with an idea, or two or three, that could really be successful. That eternal optimism and belief in one’s self is precisely what every inventor needs to succeed. Now, if you are like the so many others who have walked in your footsteps before you, you’ve probably started researching how to patent an idea but have quickly become bombarded with information from a variety of sources.
“I have no clue where to start, and I have only a limited budget,” is a typical new inventor question. “What should be my first step?”
Taking the First Step
The patent process can be complex and knowing where to begin and how to approach the process in a cost-responsible manner is not always easy, particularly for first time inventors. Of course, before proceeding it is worth first asking why it is you want a patent? The road to invention riches may, or may not, include obtaining a patent, although at least filing a provisional patent application can be and usually is a wise first step for a variety of reasons.
Inventor coach Stephen Key refers to the filing of a provisional patent application as attaining “perceived ownership” because if you do follow the patent process through to completion you can own the invention you’ve described in the provisional application. Perceived ownership is generally very important because with an application pending you can use the term “patent pending” and potential partners and licensees can evaluate what you claim your invention is as defined by a proper filing with the U.S. Patent and Trademark Office (USPTO).
Find the Funds, Do the Research
Once you do decide that a patent, or at least pursuing a patent by filing some kind of patent application, is a worthwhile strategy it is important to realize that inventing and patenting will take at least some financial resources. Unless you qualify for the pro bono assistance program through the USPTO, no patent attorney or patent agent will be able to help you if you have no funds. To qualify for the pro bono assistance program you would need to have income of no more than three times the poverty line, and even then the pro bono program does not cover licensing assistance or trademark assistance, for example. So, there is no way around the fact that the invention and patent processes require a financial investment, and it is virtually impossible to find anyone to invest in an idea or nascent invention prior to the filing of a patent application.
Still, the typical independent inventor, whether a new inventor or seasoned independent inventor, will have limited funding to move forward in their pursuit of commercializing their invention. While the process of commercializing an invention is itself not cheap, inventors should always start off by realistically considering the size of the market to determine whether moving forward with the investment of time, money and energy is warranted. Assuming the market size and invention potential are great enough, one of the first expenditures will likely be to protect the invention and that typically means a patent application.
The more limited available funding is, the more inventors will need to do on their own, which means being prepared to do some reading and becoming as familiar as possible with the patent process and legal requirements. With this in mind, I strongly recommend inventors – both newbies and seasoned veterans – start with Invention to Patent 101: Everything You Need to Know to Get Started. There resides a collection of “reading assignments” that will provide a strong foundation on the information you will need to know, starting out with the basics and then progressing to more advanced topics. Each article will also contain links to other articles for more information on the topic, which you can and should read as time permits.
Be Realistic With Your Limited Budget
Next, after getting a sense for the laws, rules and challenges, work on a realistic budget is an absolute necessity.
I have worked with independent inventors and small businesses over the past generation and have helped many with limited budgets make the most out of the money they have to work with. I can definitively say that it is possible to start with a limited budget and to do things step by step within a budget and still succeed. In fact, an inventor I started working with back in 2008 on provisional patent applications has since appeared on Shark Tank (although he did not get funded) and is killing it in his sector. See Zup. If you follow inventor coach Stephen Key on LinkedIn or Facebook you know it has worked for many of his students (it seems he announces a student has received a new licensing deal once or twice a week) and Trevor Lambert not only encourages this approach for the clients he works with, but he follows it with the products he develops himself. See VaBroom. So, starting out with a budget and pursuing protection as ideas and business demand not only works in theory, it works in practice. Although not an apple to apples comparison, that is how IPWatchdog.com started – as a bootstrapped business that has now been visited by many tens of millions of people.
Starting the patent process on a limited budget doesn’t mean you can’t or won’t succeed, it means you are being responsible. Of course, your budget must be realistic—you cannot expect highly qualified professionals to work on your behalf for free, and you must be willing to put in a lot of sweat equity along the way. Invest a little and if it makes sense and you start making money, invest more. That is how you bootstrap a business, and how you bootstrap an invention.
Professional Patent Drawings Are Key
The key to starting with a limited budget is planning ahead and developing a strategy that makes sense within your resources and one that doesn’t invest unnecessarily or recklessly. Conserve resources in a responsible way, while still laying the groundwork for obtaining the benefits and protections offered by the patent laws. The nightmare scenario you need to avoid is spending too much on any one invention that winds up going nowhere. If this happens you not only lose what you invested, but you also potentially lose valuable funds that could be used to pursue the next great idea you have. That is why you need to educate yourself on the processes, and if you do not have the funds to hire an attorney or patent agent you need to diligently work to create the best provisional patent application you can yourself. That should mean hiring a skilled patent illustrator who can draw your invention and the various parts and pieces because illustrators are very inexpensive and patent illustrations are the single best and most economical way to expand any patent disclosure. Also consider the Invent + Patent System, which guides you step by step through describing your invention.
Over the years as I have worked with inventors and musicians, what I have learned is that creative people are rarely, if ever, only going to create once. So, don’t invest everything indiscriminately all at once! That is the worst mistake you can make. That is also why Stephen Key encourages his students to move on after they’ve filed a provisional patent application if there is no licensing interest. It is also why many entrepreneurs talk about “failing quick”. If you fail slowly you bleed resources (i.e., time and money). If you are going to fail you want to hurry up and fail so you can move on to whatever is next with as many resources intact as possible.
To Search or Not to Search
Of course, any time you start the invention and patenting process on a limited budget there is something of a chicken and an egg problem. Do you start with a patent search to see whether it makes sense to move forward, or do you start with a provisional patent application first? Notice that I have already ruled out a nonprovisional patent application as the starting point. The cost of a nonprovisional patent application can be quite high and unnecessary to start the process. You can file a provisional patent application, use the coveted terms “patent pending” and then within 12 months file a nonprovisional patent application if it appears as if the invention will be worthwhile. You can also file a provisional patent application without the same adherence to formalities, which allows you to focus on the disclosure and not the format. The filing fees are cheaper. In short, done properly a provisional patent application is the way to go.
A lot of inventors will do their own patent search first, and if it is okay then file a provisional patent application. If you want to do your own patent search first, which is a good idea, definitely read Patent Searching 101, which explains how to do a good search. I tend to think that inventors doing a patent search is an absolute must. Inventors will never be able to find as much as a professional searcher or a patent practitioner, but trying to find what can be found is very helpful to the overall learning process, and reading patents to get a sense of the level of detail necessary can only help.
Ultimately, you will want to a comprehensive patent search done by a professional searcher so you can understand the obstacles in front of you, and so you can describe your invention in a way that accentuates the positive differences to the greatest extent possible over the prior art (i.e., what is found in the patent search). See Why Patent Searches are Critical. The question is when you should have a professional patent search done now that the U.S. has switched to a first to file system.
First to File Means File First!
As just mentioned, today the United States is a first to file country, which means you really must file your patent application first! Once upon a time it was acceptable to take some time to do a patent search, consult with a patent professional and have a proper search done, and then file a patent application armed with that information. In an ideal world if you can get the search done immediately and an analysis of that search also in rapid fashion, getting a search done allows you the best opportunity to know how to characterize your invention in light of the prior inventions the patent examiner is likely to compare against your invention when they initiate examination. But searches and analysis take time, and in a first to file world filing first and getting an early filing date is critically important. So, current best practice is that it is preferred to do the best job describing the invention that you can and file a provisional patent application as reasonably quickly as possible. Then on the road to filing a nonprovisional patent application have a professional patent search done and reviewed by a patent attorney or patent agent who can help you understand the implications with respect to your invention.
Although it will cost an additional provisional patent application filing fee, there is nothing wrong with filing a second provisional patent application. So, an advanced strategy is to file the best provisional patent application possible as reasonably quickly as possible. Then do a search. Based on the patent search you will learn what the prior art contains and your description of your invention will need to become more nuanced. File a second provisional patent application with that more nuanced description of your invention and subsequently file the non provisional patent application within 12-months of the first provisional patent application. This strategy is explained more fully in Provisional Patent Applications the Right Way, the Walmart Way. Walmart filed 39 provisional patent applications on a single invention before they filed a non provisional patent application claiming priority to all the previously filed provisional patent applications. That is an extreme example, but it shows how you can and should protect your invention as you make important improvements along the way.
In conclusion, when starting the patent process on a limited budget, inventors need to understand that the onus will be on them to do much of what otherwise would be contracted out to professionals by those with larger budgets. This, however, doesn’t mean the process is going to be free. Invest wisely and spend money where it will matter the most. Hiring a professional patent illustrator to get high quality drawings really needs to be considered necessary because of the low overall cost and the overall benefit obtained. Filing a provisional patent application should ordinarily be considered an important first step as well. For help creating a provisional patent application please see our do-it-yourself system I originally created to teach law students how to write patent applications. It has helped thousands of inventors over the years.
For More information
The pages of IPWatchdog.com are full of information for both newbie and more experienced inventors. To start your journey forward we recommend starting with Invention to Patent 101: Everything You Need to Know, which have various “reading assignments” assembled to help you based on your knowledge level and what information you are specifically looking for today. You might also find it useful to read through some of the articles below.
- How to Use the USPTO Patent Public Search Tool
- Using Analytics to Assess the Effectiveness of Common Patent Prosecution Practices
- Tips from a Former Examiner on How to Conduct Interviews at the USPTO
- Ten Mistakes to Avoid When Drafting Information Disclosure Statements
- Defanging Descriptive Material Rejections
- Can You Refile a Provisional Patent Application?
- Ten Common Patent Claim Drafting Mistakes to Avoid
- It’s All in the Hardware: Overcoming 101 Rejections in Computer Networking Technology Classes
- Disclosure Requirements in Software Patents: Avoiding Indefiniteness
- Patent Procurement and Strategy for Business Success Part III: Prosecution – Wielding an Invisible Hand
- Patent Procurement and Strategy for Business Success Part II: Claims – Targeting the Right Infringers
- Patent Procurement and Strategy for Business Success: Building and Strategically Using Patents that Target the Right Infringers and Thwart Competitive Countermeasures
- Fit to Drive: Three Inspiring Office Action Responses from the USPTO’s Art Unit 3668
- Design Patents 101: Understanding Utility Patents’ Lesser-Known Cousin
- Two Key Steps to Overcome Rejections Received on PCT Drawings
- Errors in Issued Patents as a Measure of Patent Quality
- Intellectual Property for Startups: Building a Toolkit to Protect Your Products and Design
- Why the Patent Classification System Needs an Update
- Understanding What a Design Patent is Not
- Design Patents: Under Utilized and Overlooked
- Deciding Where to Obtain International Patent Rights
- When to Use the Patent Cooperation Treaty—and Why It’s So Popular
- Why and When Design Patents are Useful
- PCT Basics: Obtaining Patent Rights Around the World
- ipAwarenessAssessment: Inventors and Business Owners Should Start Their IP Journey with this USPTO-NIST Tool
- Successful After Final Petitions Can Help Advance Prosecution (Part V)
- From Agent to Examiner and Back Again: Practical Lessons Learned from Inside the USPTO
- WIPO’s INSPIRE Offers a New Way to Select Databases for Patent Searches Involving Machine Translations
- Understand Your Utility Patent Application Drawings
- Why It’s Time to Board the PCT Train: The Benefits of Filing U.S. Patent Applications via the PCT First
- Implications of Filing Subsequent Patent Applications in the United States (Part III)
- Types of Subsequent Patent Applications in the United States (Part II)
- Getting a Patent: The Devastating Consequences of Not Naming All Inventors
- Getting A Patent: Who Should be Named as An Inventor?
- Make Your Disclosures Meaningful: A Plea for Clarity in Patent Drafting
- Applying for a Patent in Germany
- Autopilot or Advocate? Raising the Bar in Ex Parte Appeals at the USPTO
- Time to ‘Think PCT’: Rethink Your Global Patent Strategy to Preserve Your Seat at the Table
- Patent Office Insights from Two Former Examiners
- Conventional Patent Wisdom Revisited
- Develop Your Database of Templates for Responding to Office Actions
- Background Pitfalls When Drafting a Patent Application
- Eight Tips to Get Your Patent Approved at the EPO
- Four Things C-Suite Executives Need to Know About Patents
- Starting the Patent Process on a Limited Budget
- What to Know About Drafting Patent Claims
- Beyond the Slice and Dice: Turning Your Idea into an Invention
- Mitigating ‘Justified Paranoia’ via Provisional Patent Applications
- Justified Paranoia: Patenting and the Delicate Dance Between Confidentiality and Investment
- Anatomy of a Valuable Patent: Building on the Structural Uniqueness of an Invention
Image Source: Deposit Photos