intellectual-property, product-market-fitSo I’m sure this question has been asked in some other form, but I’m not sure how to find it/what to look up for it, so here it is. I have this idea for a product (I’d rather not say exactly what it is right now if possible) that’s sort of a reuse/combination product. How do I put it; like one of those products where it was already being produced, but it wasn’t being used in a certain way. In other words, I can’t patent this, because it’s already in use, but I want to sell it as a kit for a different use. Is there no protection for that in the marketplace? Like you can’t patent just using two chemicals and an applicator for example, unless it’s a novel enough to be an invention (unless maybe it’s a design patent)?
Most startups focus on decisive execution as the way to protect their business opportunity. If you’re worried people are going to discover what you’re doing, then unless you’re selling to the security services, you’ll never sell to anyone.
That said, a small proportion of patents generate value for their owners. This isn’t qualified advice, but my rule of thumb for a patent being worth considering is to ask the following three questions:
Is there a reasonable likelihood of a patent being granted with sufficient breadth to give me access to many applications and to prevent all obvious patent workarounds?
Is there either (a) a competitive market of reasonable scale where multiple players could gain significant advantage from use of my invention; or (b) a consumer market or business channel that can be attacked with modest cash consumption?
Do I have, or does an investor who trusts me want to offer, $100,000 to put at risk for 3-10 years?
Three yes answers and, alongside my plan to do without, I’ll explore the patent route. Zero, one or two and I’ll focus all my energy on how to monetise the expertise.
As far as whether the invention is patentable or not - it could be.
Process/method patents cover the new way something is used - the process for doing something - rather than the actual mechanical/chemical components of the process themselves. If you discovered a truly novel, non-obvious (two distinct hurdles), then you would likely have a patentable product. HOWConceptual has a good article explaining patenting a 'new use of an old idea.'
That said, as Jeremy Parsons pointed out, whether or not it is worth it to pursue a patent is a distinct and important question. You can find guidance on both those questions by contacting a reputable patent practitioner.
A quick true story and then a possible solution.
A patent isn’t necessarily protection you can rely upon. A friend of mine invented a product relating to a classic American sports car. He received a patent for this product and began manufacturing and selling them himself. He was doing well enough. BUT… soon he found his exact product being sold at a major auto parts retailer, having been manufactured in China. He sued the auto parts retailer. The auto parts retailer kept the lawsuit tied up in court for years, driving my friend into bankruptcy. My friend did eventually win the lawsuit and was awarded a suitable settlement, which the last I heard the auto parts retailer never paid. The court makes a judgement but doesn’t enforce it. You are responsible for collecting and how does a single person go up against a multi-billion dollar corporation? Another lawsuit.
The lesson is, if there is profit to be made, someone will rip off your product, patent or no.
So, another kind of potential ‘protection’ is to create very strong, highly recognizable branding and then protecting that branding with a trademark.
Think about going to the store and buying Kleenex or Q-tips. In fact you are buying facial tissues and cotton swabs, but those companies have such powerful branding that we think of products in terms of their brand names. Our minds automatically register those names as we walk down the isles and we pick them up and buy them.
If you are able to strongly equate your product with specific branding (name, package coloring, catch phrase), when consumers go in search of your product and come across a knock-off, they will pause and possibly back away from the purchase, knowing it is a knock-off and potentially not the same quality as the ‘original’.
This works! If you are creative, the cost to create this emotional protection is zero. Otherwise, you’ll need a clever marketing / designing firm to create your branding.
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