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Protecting your big idea



You’ve just come up with the next big idea. You’re anxious to share it with the world, but you’re not quite sure what to do next.  Before you make the next move, ask yourself: what should you be doing to protect your new million-dollar idea?

If you do nothing and introduce your product to the market and start selling, you may try to license. Licensing your idea, however, will be challenging (if not impossible) because you’d be licensing something you have no legal right to enforce. Alternatively, if you try to sell and market the idea, you may experience some success. However, your success will likely be short-term because it won’t be long before your competitors start swarming. They will be quick to utilize their existing supply chains and labor (at a much cheaper cost) and price you out of the very market you created.  Trust us, it happens all the time. Take, for example, the fidget spinner. In 2017 the fidget spinner was the hottest product in the market, with sales in the thousands. Unfortunately, the owner of the invention had not taken steps to maintain the idea protected. As a result, she saw nothing in return in terms of revenue for her creativity, while others, including multimillion-dollar companies, made tens of thousands of dollars because of it.

Of course, you could do absolutely nothing and instead choose to “sit on it.”  This scenario is also not without risk.  Here, the threat is that someone else beats you to the punch, i.e., they file for a patent and take away your right to make, sell, or otherwise exercise any right to the idea.  Trust us, this too is a frequent occurrence ever since patent law changed from a first to invent to a first to file system in 2013.


To avoid the 2 unfavorable fates described above, you would be wise to protect your new idea through intellectual property law.  If you seek the highest level of protection available, you will need a Patent.  This is particularly true if you seek (private or public) funding, as venture capitalists have come to expect and rely on the protections of Patents in choosing where to invest their dollars. Simply put, it is difficult (if not impossible) that someone will invest in property you do not have any rights to. Think about it, will someone help you pay to construct a beautiful water-front resort when you have no rights to the land? No.

A Patent is a legal right (often referred to as a “limited monopoly”) granted by the United States Government that grants the patent holder the right to enforce their right to exclude others from making, using, or selling the claimed invention for a limited period of time.  There are three different types of patents, each with different requirements and each lasting a different term.  In the United States, the two most common are utility patents and design patents, which are granted for a term of 20 and 15 years from the date of filing, respectively.

A design patent is patent that protects the ornamental design of a product.  For a simple illustration, think Apple®.  The Tech Powerhouse Apple® holds over 16 design patents, including a design patent for the iPhone, iPhone wallet with MagSafe, iPhone home screen GUIs, and more. As you may have probably heard in the news in recent years, Apple has successfully protected its rights against Samsung® through its design patents. Accordingly, A design patent can be an effective tool to protect ornamental designs. To view a few of Apple® design patents, click here.

In contrast, utility patents are more complicated and are often what most people think of when they hear the word “Patent.”  Utility Patents have often been referred to as “patents for invention” and includes all essential parts thereof.  Utility Patents are covered in Title 35, Part II, Chapter 10, subsection 101 of the United States Code, which defines what exactly can be patented as, “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof . . .”   To view the full text of the (short) applicable law, click here.

No matter what you are trying to patent (a processes, machine, manufactured product or compositions of matter), and without getting too technical, your claimed invention generally needs to meet 3 requirements:

  1. the idea is patentable subject matter (it falls into 1 of the 4 categories described above)
  2. the idea is novel, and
  3. the idea is nonobvious.

If you would like to know more about what constitutes Patentable subject matter directly from the United States Patent and Trademark office, click here to learn more.

If you would prefer to speak to a live person about whether your actual idea can be patented, just pick up the phone and give us a call to schedule a free consultation.  Call us today at (305)892-5454 and let the law firm of Obeidy & Associates help you protect what belongs to you.

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