I have this great idea....

That is usually where it starts when I see a new client. My work as a patent and trademark attorney is, relatively speaking, a fun endeavor compared to other areas of the law. When my clients come to me, it is not because they want a divorce, they just got arrested or served with a summons. My clients come to me because they have an idea for a new invention or product and they are ready to set out on their entrepreneurial adventures.

The first thing you need to know about patents is why they exist. There is Constitutional authority for the Patent statutes under the responsibilities of the government to pursue the "useful arts." The Patent statutes give a limited monopoly on a new idea as long as it meets the statutory criteria. The criteria seem simple at first. The idea has to be 1) new, 2) useful and 3) unobvious to a person of ordinary skill in the art.

I have yet to run across an idea that was not statutorily useful so that second criteria is pretty superfluous.

To determine whether or not something is new, a novelty search of some sort needs to be conducted. This can be done in several ways. It can be done through a very thorough investigation of the art area through market research or it can be done through a novelty search, which my office does for a flat fee of $1000.

Most independent inventor clients do not engage in too much R&D. Usually, they are hit with inspiration, much like an artist. They are conduits to ideas out there in the ether. I have seen this over and over again. It never ceases to amaze me when how the time is ripe for an idea, it shows up in the minds of more than one person at a time. How many of you reading this have had a product in mind that you saw come on the market after you had thought there was a need for such a thing? This phenomenon is more common than most people realize.

Because of this "ether" phenomenon, I usually advise a quick filing of a provisional patent application on your idea as soon as you have faintest idea that it may be novel. More thorough searching and market analysis can be done once the application is filed. It is important to get your place in line by filing an application as soon as you think you have something so that you beat anybody else who may have "captured" this idea. If someone else files on your idea before you, it is no longer novel.

Obviousness is the big bugaboo and I will talk about that in a later post....stay tuned.....