Would you sign the following document and give it to any service provider you choose to work with?
Inventor Agrees Statement
I acknowledge that as an inventor I am considered a business person and therefore, in the eyes of the law, will be held to a higher standard of knowledge and accountability than general consumers. I fully understand that the effort I am embarking on will most likely lead to a total loss of all funds I expend on it. I am fully aware that studies of patents have shown that less than 2% ever make anyone any money. I am further aware that patents cannot be gotten on ideas but only on some clearly described (such that another party could use my description to make and/or use my conceived invention) embodiment.
I recognize that anyone seeing the idea I have embodied in my patent is free to use that idea to create a non-infringing embodiment and get a patent of their own. More explicitly, I am fully aware that one of the purposes of patent law is that it makes it possible for someone to see my patent and, using the knowledge gained thereby and the ideas expressed therein, to create a better, and possibly non-infringing, invention that accomplishes the same task but at a better value than I can provide to customers.
I know the difference between a broad patent and a narrow patent and am fully aware that a narrow patent is unlikely to ever have much value because it cannot be used to stop others with similar inventions. I am aware that 80% of all new products fail within two years and are withdrawn from the marketplace and also that, in fact, less than 1% of all goods currently available in the marketplace have any patent protection at all. I am further aware that about 95% of all new businesses are gone in 5 years.
I am fully cognizant of the fact that there already is competition for my invention even if that competition is for the party that might be able to use my invention to "do nothing." I understand this because I have not bought one of every prior invention on the market that I "could" use. I know that it is rare for products that sell for more than the average of 3.5 years to achieve sales to even 10% of their possible buyers in 10 years.
I understand that getting a patent on an invention is cheap and easy compared to manufacturing and successfully marketing a product. I am well aware that of the 2-5% of successful patent holding independent inventors certainly less than 20%, and probably even significantly less than 15%, become successful by getting a licensing deal with a manufacturer. I understand that, of the 2-5% of inventors who are successful, the 80+% that achieve success through venturing usually expend years and thousands of dollars of their own and other peoples' money before achieving success. I know that it is extremely unlikely that I can keep all the profits for myself and that I will have to get help from others who will get substantial parts of any eventual profits. That others will receive higher profits from my invention than I will is accepted as a fact.
I know that there is no such thing as a provisional patent and no such thing as a worldwide patent. I am aware that I can file a fully disclosing and enabling Provisional Application for Patent (PAP) that will let me use the term "patent pending" for one year and that will hold a priority date for me for one year for only what is new and non-obvious that I disclose in the PAP. Further I am aware that within 1 year from my PAP filing, in order to secure the priority date of the PAP I must not only file my full US patent application but also foreign applications or a Patent Cooperation Treaty (PCT) application should I wish to try to secure patent rights in foreign countries.
I know that a PCT application only, for my fees, buys a delay of up to 20 months (30 if I pay more fees) and never issues as a patent. I will then still have to file copies or near copies of the PCT application as an actual application in any foreign PCT member country in which I wish to obtain a patent. I understand such country specific filing must be done with appropriate fees through, if necessary, a proper (and probably paid) intermediary and possibly with language translation costs which I will bear.
I know that I can write a thorough and enabling PAP myself and that I do not need a patent attorney or agent to do so. I understand that while a PAP requires no formal structure or claims it is mandatory that my specification and drawings be completely enabling for one of ordinary skill in the art to practice my invention and that I must disclose the best mode of the invention known to me at the time. I further understand that anything that I omit from my PAP will not be entitled to protection of the priority date of my PAP and that my actions with regard to such omitted matter may result in the loss of any rights for US and/or foreign patent claims regarding such omitted matter.
It is also clearly known to me that no Disclosure Document, no Non-Disclosure Agreement, no Confidentiality or Confidential Disclosure agreement, no Provisional Application for Patent, and, in fact, not even an issued patent actually protects me against those who would compete unfairly or who would infringe whatever patent rights I may secure. I will generally only be able to defend myself and my patent after such patent is issued and I must do it at my own expense and trouble since the government will not aid me in such defense. I am aware that those infringing my patent will not be committing a crime by doing so but will only be committing a civil violation of my rights which I must take to civil court in order to seek a remedy. I am aware that even an issued patent can be declared to be invalid and not enforceable as was Thomas Edison's light bulb patent.*
I realize that patent agents and patent attorneys are not in the business of passing judgement on the wisdom or marketability of inventions and that any positive comments such may make on my invention are their personal opinions. I further realize that some individuals might express a positive personal opinion merely as a marketing ploy to gain my business. As a business person I understand that the safest route, from a legal perspective, is to file a patent application as soon as possible to avoid the risk of someone else beating me to it. As a business person I understand that the advice contained in the previous sentence is sound but that it also is in the financial best interests of the agent or attorney who I might work with.
As a business person I am clearly aware that the risk in spending money to patent first may be completely wasted if I later find better or cheaper competing products on the market, discover existing patents that will require my claims be too narrow to provide much, if any, right to limit near knockoff competition, or discover that my invention just will not effectively work or be manufactureable as originally envisioned. I have done my own careful analysis of the marketplace and believe that my invention will both contribute to the marketplace and that any products produced will be able to sell at a retail price about 4-5 times the full production cost.
I understand that this document is not an agreement, only an acknowledgment of part of my understanding of the inventing and patenting process, and I fully assume all risks of wasting money on a patent application that may never issue as a patent or may issue and be worthless. I am also aware that any delay in filing an application will have genuine, but usually small, business risks associated with it and I am prepared to fully accept those risks. I recognize that any money I spend on service providers of any kind toward furthering my invention may in retrospect turn out to have been a bad business decision regardless of any patent protection I may or may not be able to get.
I HAVE READ THIS DOCUMENT IN ITS ENTIRETY AND UNDERSTAND ITS CONTENTS AND THE RISKS THAT I AM TAKING.
Signature _____________________________________ Date ___________
Printed Name ____________________________________________________
Phone ___________________ Fax _________________ E-mail _________
If you would not sign the above and willingly give it to any service provider (patent attorney, patent agent, marketer, prototype maker, whatever) then I would suggest you are not yet ready to take your invention to that service provider. You will be entering into a business agreement with them where you are most likely taking the greatest risk--if not all the risk. And that is as it should be. You will pay them for their services and they will do what you've asked within reasonable limits as allowed by law. If your invention does not become successful you will not recover your costs but they will have not only covered their own costs but made a profit besides. The bottom line is that patents don't make money, profitable sales do. Welcome to the business world, inventor!
Now let's turn the question around. Should a service provider (most particularly a patent agent or attorney) that you are likely to approach first about your new idea ask you to read, understand, and sign such a document before they agree to accept your payment? Of course they don't have to. As business people the law generally allows them to assume that you, as a fellow businessperson, already know that material forwards and backwards. Would that assumption have been accurate when you first started your inventing adventure? Did you know it before you committed your first dollar of expense to some service provider? Do you think they actually accepted your dollar believing that you knew it? Or do you think they merely accepted the shield of legal presumption of your knowledge then took advantage of your naivete?
Knowing what you know now would you have preferred that they had made you read and sign such a document? Would you have balked at signing such a document? Would it have stopped you from rushing into engaging that service provider until you did take the time to educate yourself? Do you think service providers should be required to have prospective inventor clients sign such a document before accepting payment for services? Do you think a service provider that has prospective inventor clients sign such a document is more ethical than one who doesn't?
While you wrestle with those questions the answer for me is easy. I think inventors should all willingly sign such documents because they've gotten the education they need before rushing into "getting rich." If service providers required the education first, then acknowledgment of understanding, before accepting fees I think the net result would, in a few years, be many more successful inventors--and many more service fees for the providers. But, as long as service providers are allowed by the inventor/provider community to get away with simply closing the sale on each naive inventor that shows up, inventors will continue to give up in disgust after their first invention attempt (particularly if it includes a $5,000+ worthless patent) exhausts their resources.
*Edison did get one claim reinstated after a lengthy and very expensive court battle but he and his staff and attorneys probably committed perjury to do so (see "A Streak of Luck" by Robert Conot, 1979).
Copyright © 2003 James E. White, inventor, marketer, and author of "Will It Sell? How to Determine If Your Invention Is Profitably Marketable (Before Wasting Money on a Patent).
Copyright © 2004 James E. White
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