Will It Sell?TM
How to Determine If Your Invention Is Profitably Marketable
(Before Wasting Money on a Patent)

"It is really a good book. Nothing in it upset me, as I basically preach the same message to my would be clients. He gets quite technical on some of the marketing evaluations, which makes it a tougher read than 'Stand Alone' but the material is pure gold."
George H. Morgan, Professional Engineer, Patent Agent, www.evansville.net/biz/patagent

STEP 1—Ask people and critically examine their responses.

Disclosure Document

The USPTO Disclosure Document program ended in 2007 so you're pretty much limited to getting a thorough and enabling writeup of your invention witnessed by friends. You can get two of your friends to witness your inventor's notebook or you can get your patent attorney to witness your notebook or other documentation describing the invention. If your attorney is the witness, they will likely charge a fee although some do it for free on the assumption you'll be back for the patent application. If your friends are witnesses, they MUST be capable of understanding the invention and should write "Read and understood" on each relevant page of your notebook that they sign and date. THE FRIENDS MUST NOT STAND TO GAIN FROM YOUR INVENTION (spouses and boy/girl-friends are clearly out). You pick two friends mostly as minimal insurance against the death, incapacitation, or "tainting" of one. A witness is tainted if they stand to gain or are shown possibly not to have understood. Having your document or notebook page(s) notarized MIGHT also be effective but only if the notary would be able to testify as to what was on the page at the time, a very unlikely proposition. Sending a registered letter to yourself is definitely NOT effective at establishing a date of invention. Under the revised law (Sep. 16, 2011) the rule of "first to invent" disappeared effective March 16, 2013 in favor of "first inventor to file." See the idearights.com website for a more thorough discussion of "first to file."

Non-Disclosure Agreement

Having people sign non-disclosure agreements (see the examples) as you talk to them for this step is not a bad idea either but you need to balance practicality with risk. At the very least, record, in your inventor's notebook, the names of the people you talk to and the date and time and place that you talked to them. All you are building is plausible documentation that a jury or judge will hopefully believe should you ever need to go to court with it.

The "Snicker Test"

You don't need the expense of a fancy Focus Group and you don't need to hire anyone for a Mall Intervention. You can stick your ego..., I mean your idea, out in front of people for free. Ask a few of your friends, particularly ones that should be knowledgeable in the area your invention is to be used in. Sometimes this is called the "snicker test" because your idea is likely as not to generate a snicker. It is up to you to interpret the response. Did they not understand what you described (highly probable if you don't have a model or a prototype to show them)? Did they not want to offend you with an honest opinion? Might their opinion reflect that of potential buyers? Etc. With drawings, or just a word description, most people will not be able to really evaluate an invention, but there are some steps you can take to help.

An Elevator Speech?

First and foremost is: PREPARE A GOOD ELEVATOR SPEECH. A what? Salesmen use them all the time. It's a 60-second speech that you can use on ALMOST ANYONE that clearly identifies the salient points and makes them understandable to ALMOST ANYONE. When you step into an elevator with a stranger you have very little time to impart to them what you, or your product, are all about, so you need to be clear and concise and ASSUME NO SPECIAL TECHNICAL OR SUBJECT KNOWLEDGE ON THEIR PART. In other words, skip the industry jargon and use words that won't need to be defined for industry outsiders. If you are lucky enough to be talking to an insider, they'll still understand you.

You should also be aware that while inventors are sometimes held in awe, product developers are often more trusted—so call yourself a product developer rather than an inventor. Calling yourself a product developer rather than an inventor also has two other advantages. The first is people will typically assume you work for a large company and that you are probably not the originator of the idea. Thus they will feel free to be more honest with you. The second is that it lets you emotionally distance yourself from the invention.

A Model Is Worth 1000 Words

A 3 dimensional model or even just a reasonable mockup that looks like your invention, but is not necessarily to scale, will also help if your invention is not easy to visually describe in a sentence or two. If 3 or more out of 10 people don't "get" the invention when described in words, a small, pocket-size, model is almost an essential. You can't dig in your briefcase for it, you must be able to show it NOW.

Get Expert Opinions

After you've gotten the input of a few friends, perfected your elevator speech, and hopefully toughened up your ol' ego a bit, now it's time to approach the experts. The experts are anyone you believe will benefit from your invention. That might be neighborhood kids (talk to them in their parents' presence PLEASE) or house spouses or elevator operators or rocket scientists. Yep, you must figure out who in general you need to talk to, identify a few specific individuals, and figure out how to introduce yourself to them—then do it! Making cold contacts is often a very big hurdle to get over. But what is the worst that can happen to you? You'll bruise your ego? You'll be thought of as a kook? You'll make a new friend? The country's leading expert will volunteer to take your fantastic idea and run with it giving you full credit and 99% of the profits!

You can also do your own Mall Intervention. Be sure to get permission from the mall's management or the management of the store your type of customer would enter and that you want to do your "intervention" in. The essence is not to ask the participants to vote on a "best" idea, it is to get them to tell you what is wrong with each of the ideas (including your new ones and existing products). It is NOT a good idea to present your "great idea" and 3 or 4 "corn-ball" ideas you thought up for "comparison." The point is that being the "best" of 5 dumb ideas is NOT a good predictor of success; knowing what the prospective buyer wants but is NOT getting should give you some valuable insights.

Idea Theft

If you are afraid of someone stealing your idea in this step you should be aware that it is highly unlikely since few people would be interested in devoting time and money to the development effort (or even just to the patenting effort). You can go to the trouble and expense of the patenting considerations given at the beginning of this step; however, be aware that getting your inventors log signed by witnesses, getting non-disclosure agreements signed, etc., do not "protect" your invention. The bottom line is NOTHING ever "protects" your invention—not even a patent. A patent, IF you can get one for your invention, merely gives you, mostly at your own trouble and expense, "the right to exclude others from making, using, offering for sale or selling the invention throughout the United States or importing the invention into the United States."

The U.S. Patent office no longer recognizes (since March 16, 2013) "first to invent" as having priority but now gives precedence to the first inventor to file or, within one year before filing, publicly disclosing of the invention. Most foreign governments use a "first inventor to file" rule. While the U.S. allows the inventor to "make public" the invention up to 1 year before filing a patent application most foreign governments require the patent application be filed BEFORE any "publishing," anywhere in the world, of the invention. For example, if you were, as part of STEP 1, to prepare a brochure on your invention and to pass it out without requiring the signing of a non-disclosure agreement, you would likely be giving up all future rights to obtaining a foreign patent. If you must be paranoid, pay for the assistance of an attorney before starting this step.

Theft of product ideas is actually extremely rare but you should also remember that IDEAS are not protectable intellectual property anyway. The USPTO explicitly states "A patent cannot be obtained upon a mere idea or suggestion." IDEAS are free by law, they cannot be stolen; that, unfortunately, doesn't prevent nincompoop jurors from occasionally awarding money to nincompoop idea claimants. An invention, "reduced to practice" (even if only via a description on paper), is no longer an IDEA; it is one (perhaps patentable) embodiment of that idea.

If you keep a good log of who you talked to, and when and where and what you showed them, and someone steals your idea and gets a patent, you will have some expense and trouble but the odds are that you will be able to get their patent invalidated. If the commercial essence of your IDEA was not patentable and someone you talked to about it (without an oral, or preferably written, non-disclosure agreement) gets to market first and makes the big bucks—hey, that's the essence of the competitive, capitalistic reality that made the U.S. the great country you enjoy living in. Of course, you should never consider that person as your friend or ever trust them again.