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(I could easily have been one of those people too. You know how, whenever you see a new invention, you say to yourself “I had that idea years ago! Whodathunk I coulda made a buck on it?” That’s me, at least once a week. But that’s another story.)

When they have an idea, sometimes they’ll seek me out and ask whether it’s a good idea. Well, I don’t do patent searches in my head, but I’m full of opinions. So I’ll tell them whether it’s good or not. If I say it’s good, they might ask if they could start a business around the idea.

The answer to that question is “yes.” But what should they do to protect the idea while they’re working on getting it to market? They ask first whether they should sew up the intellectual property rights through an application to the US Patent and Trademark Office.

Sometimes that is a good idea, but it’s not always. The PTO won’t grant patent rights for an idea – only the idea’s results. They won’t grant patent rights for something that’s just a little bit different from what’s already out there – the idea has to be “unobvious.” And they won’t grant patent rights for a different use of an existing tool – as my friend Tom Krol of the IMET Corporation once told me, “you can use a flyswatter for all kinds of things, but it’s still a flyswatter.”

Even if you have an idea that could be patented, what is there, really, to prevent someone from stealing the idea as soon as you reveal it? That’s what happened to Robert Kearns, who invented the intermittent windshield wiper – a story dramatized by Greg Kinnear in the movie “Flash of Genius.” Most people would not defend their patent rights against a larger company, if the idea is stolen: it takes years and costs a lot of money. Doing so screwed up Kinnear’s character’s life in the movie.

What prevents a mix-up at the Patent Office – no matter who causes it – from having the patent go to your competition? That’s what happened when Alexander Graham Bell’s patent application for the telephone arrived just a few hours after Elisha Gray’s “caveat” – which does not carry the claims of a patent application. Bell was awarded the patent.

The history of ideas tells us repeatedly that when one person has a great idea, someone else is having the same idea at the same time. That, combined with the knowledge that you might not be able to get a patent, or that a patent might not protect your idea, suggests that it’s really about being first to market.

And that’s the path that most inventors should be taking. Otherwise, they may spend a lot of time and money going down a blind alley. Some of the inventions I’ve seen are eerily similar to the “Jump to Conclusions” game from the movie “Office Space.”

If your idea really is something new, something nobody is doing already, then by all means protect that idea. Apply for a patent. Send a copy of the idea, along with dated notes and drawings, to yourself in the mail – just in case there’s litigation down the road. Keep an inventor’s notebook, again just in case. Have a prototype made. Keep in mind that the production of a working prototype is going to cost you several tens of thousands of dollars – that money is mostly unrecoverable engineering hours, leading to drawings and a manufacturing plan, fortunately.

But if it’s not something new, then ask yourself whether you can sell it anyway. Sometimes a modest difference between your idea and someone else’s can prevent your infringing on their rights, and allow you to go to market. This is what happened with Albie’s Foods, who in 2005 went to court because Smuckers tried to prevent them from marketing a type of peanut-butter-and-jelly sandwich.

You don’t want your name used by someone else to market inferior products and services. That reflects on you.
You don’t want someone else to come along with a similar name in the same market and try to push you out. This is what happened when Terri Williamson, in 2002 Founder of Glow Industries, found her products pushed out by a new line, Glow by JLo (yes, Jennifer Lopez). Ultimately, the two parties settled, but there may be a hundred variations on the word “glow” in cosmetic companies and their product lines today. You definitely don’t want to tempt fate by doing what everyone else is doing – or will do.

Burlingham, B. “Whose Brand Is It, Anyway?” Inc, 05.2003. http://www.inc.com/magazine/20030501/25434.html

Monosoff, T. “Keeping an Inventor’s Notebook.” Entrepreneur, 06.12.2006. http://www.entrepreneur.com/startingabusiness/inventing/inventionscolumnisttamaramonosoff/article159556.html

Rulon, M. “Peanut-butter patent isn't going to stick.” The Seattle Times, 04.09.2005. http://seattletimes.nwsource.com/html/businesstechnology/2002236171_pbjpatent09.html