Tip 1. Figure out how to make money from your idea
Firstly, prior to filing a patent application, consider how you would make money from your idea.
There are a number of ways in which your idea could be commercialised. The first way is to bring the product to market yourself while leveraging from your patent protection to keep your competitors at bay.
A second way is to sell or license your IP to 3rd parties. For example, when it comes to licensing, for mechanical type inventions, royalty rates of about 6% of sales price are indicative.
Your IP can be monetised by your bringing the product to market yourself or by licensing your IP to others
As a general rule of thumb, we always say that if you expect to be able to make more than $10,000 from your idea, then patent protection is worthwhile.
Tip 2. Never disclose without protection
It is very important that you do not disclose your idea prior to filing a patent application. The reason is that, on the day that you file a patent application, it must be new in light of any publication or use anywhere in the world, which includes your own publication.
Inventors often publicise their ideas, only to find out that they have subsequently unfortunately lost their rights to patent protection. Certain countries have Grace period provisions, but these are saving provisions and should generally not to be relied upon.
Publicly disclosing your IP prior to filing a patent can jeopardise your rights
Other inventors seek to rely on nondisclosure agreements prior to filing a patent application. This can be dangerous.
Companies often refuse to sign nondisclosure agreements because they do not want to incur legal obligations.
Furthermore, nondisclosure agreements are only operative between parties and an inventor may be left without remedy if unable to prove a breach of confidentiality in the disclosure by the recipient to an unauthorised third party.
As a general rule, the higher the perceived commercial value of the invention, the less risk you should take. As patent attorneys, we always say file an initial patent application to establish an international filing date prior to disclosing your idea to third parties.
Tip 3. File a thorough patent application
When it comes to filing a patent application, it is very important that a thoroughly prepared patent specification is filed.
The reason is simple, the more technical details in the patent specification as filed, the easier it is to distinguish your idea from cited prior art during examination. In other words, the more technically detailed your patent specification, the greater the chance of the acceptance of your patent application.
Secondly, the greater the breadth of technical description of your patent specification, the greater the opportunity for finding infringement against competitors. Specifically, once having filed a patent application, if it eventuates that a competitor’s activities falls within the scope of any of the technical description of the patent application, we as patent attorneys may file a divisional application with claims worded to find specific infringement against the competitor. In other words, the more technically detailed your patent specification, the easier it is to stop competitors.
The more thorough the patent specification, the greater the chances of the patent application surviving examination and of your being able to establish infringement
Filing a thorough patent application is the job of your patent attorney. In the past, it used to be the practice of patent attorneys to file an initial brief provisional patent application and look to “beef up” the description when filing the complete application later. However, this practice is becoming increasingly dangerous, including in Australia where the recently introduced “Raising the Bar” patent law amendments raised the required initial disclosure requirements.
Tip. 4 Commercialise rapidly
Finally, once having filed the initial patent application, it is vital that you commercialise rapidly. The reason is that, at the end of the 12 month provisional period, you must make a decision as to whether to continue with the patent process or not. This decision essentially depends on how well your idea is commercialised in the preceding 12 months.
Obviously, if the commercialisation was a failure, it wouldn’t make sense to continue the patent process.
Your commercialisation progress dictates how to continue the patent process
However, hopefully the commercialisation of the idea is going well in that there are interested parties, prospective sales and the like. In such a case you would have justification to continue with your patent application into many countries of interest. In this regard, the greater the commercialisation outcomes the greater the number of countries one would pursue for eventual patent protection.