How to Sell an Idea Without a Patent

By Lee Hall, J.D.

How to Sell an Idea Without a Patent

By Lee Hall, J.D.

The inventor of a unique and original innovation can apply to the United States Patent and Trademark Office (USPTO) to acquire a patent for the work. A patent ensures that the inventor is the only one with rights to the innovation. A court will uphold these rights to stop others from using the idea without the permission of its original inventor. Yet, many inventors sell their concepts without patents. Let's explore why and how they do this.

Man looking at robot on desk and typing on laptop

What a Patent Establishes

First, what does having a patent mean? Most inventors look to patent their work because they want to establish the innovation's credentials in the marketplace and they want the ability to earn revenue from selling or licensing the innovation.

Can the inventor change the innovation based on feedback from users and licensees? Is the patent "written in stone" as described when the inventor applied for it?

Not entirely, but the process of seeking a changed and reissued patent only allows for strictly limited modifications.

Note that the USPTO publishes each patent 18 months after the filing.

Deciding to Patent

Ask yourself these key questions to decide if you should apply for a patent, then proceed.

First, ask yourself if you prefer to market the innovation as a test at the beginning and are not yet ready to commit to a patent. You might also decide that you cannot wait years for a patent approval, and a dynamic market compels you to move more quickly.

You can simply enter your product into the marketplace. This is, in itself, a method of announcing and protecting your intellectual property.

Yes, a patent will protect the rights to the inventor's intellectual property in court. But, if your goal is to sell your product, licensing it quickly may take precedence over committing the time to establish a patent. This is especially the case if the companies reviewing your idea do not require patented submissions.

The Provisional Application Option

A provisional patent application buys you time before plunging into the full patent process. It empowers you to market the product in "patent pending" status. This can jump-start the marketing of your invention.

Here are the key steps in the process.

  1. Compose a description and file for a provisional patent with the USPTO online. While a provisional patent application must precisely describe an innovation, the description can allow for some leeway to adjust the concept based on users' reviews.
  2. Be prepared to convert your provisional patent into a full patent within 12 months. A provisional patent will not automatically convert into a full patent.
  3. Seek the backing of a licensee who will market your idea or a new version of it based on the user reviews. Then, create an agreement with the licensee you choose.
  4. Decide whether you want to make changes or file for a new full patent. This is likely a decision you will make with your licensee when creating your agreement. Make the changes agreed upon and submit the appropriate patent application.

Covering Your Costs

A serious licensee may agree to pay royalties for the right to market your work. The parties can agree to increase your royalties should the product ultimately receive legal protection from the USPTO.

Stephen Key, the cofounder of InventRight, authored the book Sell Your Ideas With or Without a Patent (CreateSpace, 2015). Key writes of the importance of finding a licensee willing to pay for the patent process on the innovator's behalf.

If you can negotiate fee coverage with a licensee, you'll avoid spending application fees for a concept that may not ultimately be a commercial success.

All Things Considered

Once you weigh the costs and benefits of patenting versus marketing without a patent, you may find that the provisional patent application is generally the best choice. It combines legal protection with the means to determine your concept's actual market potential. Intellectual property is a complicated area of law, but many an inventor has worked with a licensee to find an ideal way forward.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.