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

"Will IT Sell? was specifically written for anyone considering bringing their invention to market. A key consideration in marketing a new idea or product is to determine its profitability, especially before investing capital on a patent. James White's practical, 'reader friendly' informational manual will provide the non-specialist general reader with inexpensive techniques and practical steps to take in assessing whether or not their invention will be commercially viable. Fundamental issues are clearly addressed such as what a patentable invention is, the steps for 'idea development' and 'product development'; advertising claims, getting professional help, even doing your own patent search. Dozens of Internet resources are provided with instructions for how best to utilize them. If you have an idea or an invention that you want to make money with, begin by a carefully reading of James White's Will It Sell?"
Willis M. Buhle, The Midwest Book Review

STEP 6—Create the marketing materials and GO! Then patent.

Real U.S. Patent—and PCT?

Patent considerations for this step: Well before your 1-year Provisional Application for Patent clock, if you filed one, expires have your patent attorney get started on the U.S. Patent Application and/or a PCT (Patent Cooperation Treaty) Patent Application. Whoa! PCT? Isn't that...international? Yes it is, and your multi-country patent protection, if it's economically viable in the first place, may be much less expensive in the long run if you start by filing your PCT application with the U.S. Patent Office along with the U.S. Application. That's right, the same office that takes your U.S. Patent Application accepts and processes your international patent application initially. Eventually, yes, you will have to pay fees to foreign governments and probably attorneys. But you will be well down the profit path by then or will be able to abandon your application knowing that your product really doesn't sell and any patent would likely be commercially worthless.

Before deciding U.S. or PCT or both, do some real market research on the potential of foreign markets to be sure you understand where it is worthwhile to sell your product. For some clues on how to start this see the Foreign Economic Market Information in Appendix F. Also get more information about the PCT application process from the World Intellectual Property Office (WIPO) at www.wipo.int. WIPO Publication No. 433(E) is available at www.wipo.int/eng/main.htm (click "PCT system" then "Basic Facts about the PCT") and is a good starting point even though it is an extremely abstruse document. The PCT Applicant's Guide is also there and can be looked at online or printed or it can be ordered from the USPTO. The top 8 economic countries, as well as 95 others, are all PCT members (the complete list is on the WIPO site).

Keep in mind that a patent in a country can be used to exclude (at your trouble and expense) legal knockoffs made in a country in which you do not get a patent. Also be aware that some countries' patent laws require that you manufacture and/or license the manufacture of your invention in that country to keep the patent in force. Finally, be aware that many governments (including the U.S.) require additional payments over the life of the patent to keep it in force. The payments are trivial for a smashing success but can be a burden for a marginal product. You, of course, have avoided it, but those payments are a real killer for inventors who file the patent application first then limp along in development or have to try to create a market or find a licensee for their unproven invention.

Do You Infringe?

In this step you may also want to have a check done to see if there is anything your patent might infringe on. In examining applications for patent, no determination is made as to whether the invention sought to be patented infringes any current patent, only that the patent office believes the claims allowed for your patent are new. An improvement invention may have patentable claims, but it might infringe a prior unexpired patent for the invention improved upon, if there is one. There is no requirement that you check for infringement so, as a business decision, you may believe the risks of infringement are low enough and that you will be able to amicably negotiate with anyone who claims infringement after your product hits the market. You may want to hold off on ferreting out potential infringement until after your patent is issued, then have the study done and preemptively make an offer to the people you possibly infringe on. Follow your gut instincts on what is "right" and you will probably be okay but there are no guarantees. It's the old "no path is without peril" quandary. Your own patent search should have helped you avoid the potential for problems in the first place.

A legal legal maneuver you can use even if you don't believe your product will be granted a patent is to apply for one anyway. Only about 65% of all applications mature to patents anyhow so you don't need to think of yourself as a sneaking loaner way out on a limb. Your application still must be for your invention or you will be fraudulently signing the oath when you file (if you "accidentally" find out what the penalty is for this or how frequently it is applied, let me know). With the filed application you can use "Patent Pending" until you give up the fight. The advantage of the trick is that it MAY (no guarantee) delay entry of knockoff or competing products. If you are extremely lucky you may even get a patent that is never challenged or invalidated. The disadvantage, of course, is it costs you time and money for the filing etc.

Again, do not forget to include "Patent Pending" on your product and/or materials if one is. And don't forget to switch it to "Manufactured under U. S. Patent No. 999999999" and/or whatever is appropriate for foreign countries when your patent(s) are granted and where you are distributing. If you are only distributing your product in the United States "Patent 9999999" (using your patent number of course) is the simplest form of notice required if you wish to be able to collect damages from infringers.

So now you know, PATENTING is about the last thing you want to do with an invention idea. It is, of course, about the first thing you want to do with a proven PROFITABLE new product. But, if you've followed the steps, you've got about 9 months of profits to receive before incurring the major patenting expenses.

The guts of STEP 6 will be for you, or someone working for you, to complete all your marketing paraphernalia from packaging to consumer display ads as appropriate. It will likely be stretched out over a number of your early production runs as you build up distribution and sales. Before you go full scale on production you will need to at least get a UPC product ID (current fee $500) (www.uc-council.org) and complete your packaging. You will also need to prepare whatever materials are expected by the distribution channel (catalog sheets, packing boxes, quantity discount sheets, etc.).

Copyright

Copyright your commercials, advertising, package printing, instruction sheets, manuals, etc. Technically each of the "works" mentioned in the previous sentence is copyrighted the instant it is "fixed in a tangible form" and you own the copyright—even if you don't provide notice. If you retain an individual or ad agency to create materials be certain your contract or agreement (in writing) spells out that the materials created for you are ""works for hire"" and that you retain the copyright. To publicly declare your copyright (i.e., "give notice") all you need to do is place the word "Copyright" or the "©" symbol (or both)—"(C)" is NOT valid—followed by the year of first publication and a generally recognizable form of your name or DBA or corporate name. It also won't hurt, but it is not required, that you include "All rights reserved." (See the back of the title page of this book for an example of copyright notice.) To "perfect" your copyright on a specific item you must register your copyright with the Library of Congress Copyright Office (www.loc.gov or specifically copyright.gov). Each copyright registration with the Library of Congress requires completion of a form, a payment of $35 or $65 (or so depending), and usually one or 2 copies of the material being copyrighted. A U.S. Copyright is recognized by over 190 countries including most that are likely to provide viable economic markets for you so you only have to register your copyright and pay the fee once for each item.

The fun of inventing is over, now you have to get into the hard work of making a profit from it. If you have followed these steps you should have a far better chance at that than most inventors. After all, your product sells—and will sell profitably. You already know that!

For more on what you need to create for your marketing materials see Chapter 7 "Before You Enter the Marketplace." That chapter also concludes with a list of all the "marketing" and "invention marketing" books mentioned elsewhere in the book.