Saturday, July 5, 2008

Dubious Inventor Resources #1, or, Dr. Phil and the Overestimation of the Power of the Provisional Patent Application

Syndicated television talk show host Phil McGraw, aka Dr. Phil, has made a career of pushing the boundaries of psychotherapy to include finances, dieting, and, now, intellectual property.

It just came to my attention that the good doctor has published an article on his website offering his unique brand of no-nonsense advice to inventors. Phil, who "worked in litigation for years and has experience with patents and intellectual property," also calls on his buddy A.J. Khubani, a big-time infomercial producer, to weigh in on the subject.

The bulk of the advice is solid, if a little obvious, truisms such as "make a business plan," " do market research," "be patient," and the like. The kind of advice that we can all agree on -- except for one little piece of advice from Mr. Khubani that strikes me as a little misleading and potentially damaging for fledgling inventors:

“Patents are the best way to protect your idea, but they take a lot of money,” A.J. explains, noting that a patent can cost $10-30,000. “The smarter way to do it is go online — — and file for a provisional patent. It cost $105, and that’s it. You’ve protected your idea.”
I'm not actually interested in (read "qualified for") nitpicking all of the advice on the internet that pertains to intellectual property, but this one -- and I suspect it may have been taken out of context -- caught my eye because it reflects a potentially confusing part of the patent process that may be worth talking about a little bit here.

The problem that I see in Khubani's advice is that there is no distinction made between full patent applications and provisional patent applications, which is like making no distinction between appetizers and the main course.

Provisional patents are a relatively new addition to the inventor's arsenal, and they exist as a cheap and relatively easy way to establish the date of an invention and to tentatively protect the invention while the inventor evaluates its commercial potential. An inventor sends in a description of an invention, drawings if they're necessary to explain the invention -- and these don't have to be done to the same strict specs that full patent drawings have -- and a hundred bucks. The inventor then has a year to build a prototype, perform market research (like Dr. Phil said), try to sell the invention, and then, if all of that pans out, go to the trouble and expense of filing a full patent application.

In the old days (before provisional patent applications were given the green light in 1995) there were two ways to prove when something was invented: the inventor could either create and document the creation, with witness and all, of working prototype, or file a full patent. Neither of these options is particularly fast, nor easy to do on the cheap. Provisional patents enable inventors to take a year to evaluate their invention, and in the mean time, they can claim "patent pending" status on their invention. (Without the provisional patent application, it's illegal to do that.) If the inventor doesn't file a full patent application within a year, the provisional patent application expires, and the protection effectively ends.

And so we arrive at the point of this post -- filing a provision is not "it." For a successful invention, the provisional application is only the very beginning.

Dr. Phil seems, for the most part, to advocate a cautious approach to patenting. The provisional patent application as a first step fits nicely into this approach.

You may want to check out a couple of books that we have here at the library if you're interested in protecting an invention. Not that I think Dr. Phil is overstepping his area of expertise. Hey, if David Pressman wrote a self-help book, I'd probably buy it for the collection.

No comments: