I`m always interested to see people`s interest in litigation costs with patents. Almost no patents are litigated - very few. One reason for this is that BOTH sides need to spend the money. You could just as easily say "dont infringe a patent unless you`ve got millions of dollars" as you could say "dont get a patent unless you`ve got millions of dollars." The cost of litigation is a deterent to infringement - at least knowing infringement at the very least.
If the cost of a patent is spread over the life of the sucecssful product, it is usually a fraction of the total costs - much less than advertising, insurance, etc. True, you have to do more than just get a patent and go to the mailbox and look for checks to roll in.
Trade secrets do make some sense in situations where things can be kept secret for a long time. When somebody can buy your widget and take it to the lab and make a copy, there is not much of a secret to keep. "Secret formulas" and the like make sense for trade secret law.
The challenge for all inventors is that ideas are born as a very crude concept, with no real understanding of how it will work, if it will work at all, can it be manufactured and distributed at a profit and will consumers want it in its present form. What if you need to do a focus group?
In my experience over the years, we have never, not had to change the original concept based on input from persons knowledgeable in engineering, manufacturing, R & D, and marketing. If these resources are internal, then not a problem. But the typical inventor is an individual and they need to seek (disclose idea) advice of someone expert in that field.
So, a provisional application and even a design patent won`t get it because if concept changes, they`re no longer any good.
No argue here that a (utility) patent is no doubt the best way to go.
My question is, how can you evaluate the concept for manufactuability, marketability and profitability without spending thousands first on a patent application?
I say... Non-compete/Non-disclosure agreements and as Ashton said, know who you`re dealing with to minimize the risk. And move quick!
The existence of a legal problem does not mean there is an easy and affordable legal answer. What if you have AIDS and can`t afford the medication, yet make too much money to qualify for medicaid or the like? Well, aspirin is cheap, BUT IT AIN`T GONNA HELP. Well, aspirin is readily available, BUT IT AIN`T GONNA HELP. Well, I know a guy who took aspirin once, BUT IT AIN`T GONNA HELP. There is no cheap and easy "work around."
Here is a simple set of facts regarding use of Non-Disclosure Agreements:
1. Able invents something. Able thinks it is patentable. Able does not want to, or thinks he can’t afford to, hire an attorney to prepare and file a patent application. Able obtains an NDA.
2. Able knows a guy named Baker. Baker is a manufacturer. Able gets Baker to sign the NDA. Able discloses the invention to Baker to obtain prices for distribution and manufacturing.
3. Baker discloses the invention to Carol – accidentally, intentionally, or whatever. Carol does not know about Able or the NDA.
4. Carol discloses the invention to Dan – accidentally, intentionally, or whatever. Dan does not know about Able or Baker or the NDA.
5. Dan discloses the invention to Ethan – accidentally, intentionally, or whatever. Ethan does not know about Able or Baker or Carol or the NDA.
6. Ethan begins to make, use, and sell the invention. Ethan gets rich.
1. Who can sue Ethan? What is their cause of action?
2. What does your answer to question 1 tell you about Non-Disclosure Agreements?
3. Who can Able (the inventor) sue? What is his cause of action?
4. What does your answer to question 2 tell you about Non-Disclosure Agreements?