I Have An Idea, Where Do I Start?
Mark Levy

Which famous person said the following? "Anything that won't sell, I don't want to invent." P.T Barnum? The As-Seen-On-TV people? An Enron executive?

The phrase was by none other than the enigmatic Thomas Edison, who obtained 1,093 Patents including those for the phonograph and incandescent light bulb. In addition to being a mechanical and electrical genius, Edison's marketing savvy quickly led him to understand an ultimate test of the invention process -- is the idea so unique and worthwhile that people will pay for it?

The fact you're reading this article means you're probably wondering, 'How can I turn my own ideas into valuable commodities, and live well-off from the license royalty payments?' Well it's rarely that simple -- although little did Edison realize that his primitive ideas would eventually spawn necessities of the future, such as telephone communications, night-time football, and Gangnan-Style YouTube videos.

Unfortunately, we creative people tend to be possessive and impatient when it comes to things like our brilliant ideas. Skipping the basics, beginners often make unnecessary yet common errors. Many inventors' problems I've seen over the past 20 years are due simply to misunderstanding legal requirements, not knowing how to proceed, or unfamiliarity with basic U.S. patent processes.

Following are three beginning steps for getting your idea further down the road to success.

Step 1) Improve Your IP IQ

If you have a creative idea you believe has potential, you must begin with knowing how your idea is viewed under the law. Since I am a patent lawyer, I can say the law is where you must start.

Commonly misunderstood is Intellectual Property or IP. Similar in concept to real and personal property such as land, or a car; you can sell or license IP to others, and still own it.

To encourage creation of valuable ideas, and protect them from being stolen, the U.S. legal system has four key classes of IP:

Patent: A grant issued by the federal government giving an inventor the right to exclude others from making, using, selling, or importing an invention in the United States. Patent infringement occurs when someone violates each element of at least one claim in a patent.

Trademark/TM : A word, logo, slogan, symbol, design or any combination that distinguishes a product or service. Essentially brand names, trademarks promote competition by giving products corporate identity and marketing leverage. Trademarks do not need to be registered, but federal registration helps protect the mark.

Copyright/ : Protects original works of authorship or expression. Copyrights can include published and unpublished works -- literary, dramatic, musical and dance compositions, films, photographs, audiovisual works, paintings, sculpture, and other visual works of art, as well as computer programs -- from being copied. It protects the expression of ideas, not the ideas themselves.

Trade Secret: Any manufacturing process, method of doing business, or technical know-how that gives its holder a competitive advantage. A customer list can be considered a trade secret, as can chemical compounds, processes and software, as long as they are secret.

At the very least, knowing these IP classes can save you time and even embarrassment. Some months ago, I was giving a patent seminar when an attendee asked about filing a patent application for her business name. If you understand IP basics, then you realize she was at the wrong place; what she needed was a seminar on trademarks, not on patents.

Step 2) Get It In Writing

Presumably if you have an idea for a product, you will be seeking to patent it. Like other countries, U.S. patents are awarded to the first to file his or her patent application in the United States Patent and Trademark Office (USPTO).

Often overlooked is a Non-Disclosure Agreement or NDA. Sometimes known as a Confidential Disclosure Agreement, NDAs can help keep your idea from being stolen. NDAs not only prevent those who sign it from using for their own purposes, or disclosing the idea to others outside the agreement -- but also keep the clock from starting on the one-year disclosure period required under U.S. Patent Law. Depending on the type of agreement, NDAs can be one paragraph or many pages. Whatever their form, consider seeking legal advice for drafting one. An hour or less with a trusted patent attorney might just save you many times that effort down the road. Here's an example of what can happen.

In 1974, an impoverished Hungarian man with a talent for math was working on a unique puzzle that scientists would later discover had only 1 right answer and 43 quadrillion wrong ones. Working alone for weeks, he perfected an object with six sides of equal length, with each side containing six movable cubes of different colors.

The man's name was Enro Rubik, who in 1975 patented his cube puzzle in Hungary. Unfortunately for Rubik, the puzzle had not been patented internationally within a year of the original patent, so patent law prevented him from getting an international or U.S patent. While Rubik's device made him the first multi-millionaire from a Communist-bloc country, imitators quickly produced look-alikes. Eventually purchased by a U.S. company and renamed Rubik's Cube, it became the most successful puzzle invented up to that time. Yet it could have could have been even more so, I believe, had he sought basic legal advice on international patent law, and non-disclosure.

Step 3) Your Homework - The Patent Search

While it's been said that getting a patent is your first marketing step, I believe seeing what already exists goes first. If the idea has been invented, don't waste your time or anyone else's unless you can improve it.

Therefore, perform a patent search on existing inventions -- either by hiring professional firms who charge a fee, or by visiting and searching yourself. Note: patents listed on the Internet can be searched only back to 1975. If your search should include patents prior to that, you'll have to visit the U.S. Patent Office in Washington, D.C., or hire a law firm to perform the search for you.

Even with computerized access to U.S. Patent Office archives, care must be taken to avoid inaccurate results. For example, someone may have invented improvements to what I like to describe as a "longitudinal writing implement containing ink therein." You might call that a "pen." However, if previous inventors didn't use the word "pen" in their patent applications, you might miss finding those particular patents. So be creative and patient while performing the patent search.

If you want to get that idea out of your head and into the marketplace, then be prepared to do more than dream about displaying your invention on TV talk shows. So, whether you have a better mousetrap or better mouse:
  • Learn about the basic laws for U.S. patents, and international patents (the focus of a future article).
  • Document your invention in writing and with drawings using an engineering notebook.
  • Don't disclose your idea to anyone without a Non-Disclosure Agreement.
  • Perform a thorough patent search, and follow it up if possible with a professional search.
A final word of advice: Whatever path your invention takes, don't submit your idea to an invention marketing firm unless you check them out first. While these firms' activities usually are not illegal, their success at getting an idea transformed into a profitable product is often under 1 percent! Many well-meaning inventors have thrown tens of thousands of dollars to these companies, never to see their ideas become products. These outfits may not be particularly adept at marketing your invention, but they certainly are terrific at telling you what you want to hear while taking your money.

While these steps are neither exhaustive nor in-depth, they should help you aim your next Big Idea toward a product target that is achievable, exciting, profitable, and even fun.

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