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

"The book has many valuable references and some first class recommendations. It would be very valuable to an inventor—less so to an entrepreneur. Your system of rating each step is well organized and very useful. It is one of the better features of the book, allowing the reader to keep track of where he is in his process from invention to saleable product. The 'thin ice' notes introduce the flexibility needed to get a product onto the market before you bet the farm on it. All in all I think your book will be a great addition to the inventor's library."
Jeremy Gorman, Inventor's Ally (1989-1999)

CHAPTER 2 & 3

Patent Vs Profit

Pop quiz! Answer the following question: At its most basic, a patentable invention is: ____a. a great idea; ____b. a solution to a problem; ____c. both of the above.

The correct answer is "d. none of the above." Perhaps you feel tricked. Perhaps you are getting slightly steamed. Unless you get the tendency to "accept YOUR answer and YOUR answer alone" under control, you are likely to remain a poor inventor forever. How do I justify "d. none of the above" as the "correct" answer. If you have ever taken the time to peruse the U.S. Patent and Trademark Office (USPTO) site (www.uspto.gov) you will quickly see that many patents are neither great ideas or solutions to any real problem.

Patents Are Granted For...

Patents are simply granted to people who (claim to) "invent or discover any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof," to quote the essence of the U.S. statute governing patents. Per the Constitution of the United States the inventor secures, for a limited time, "the exclusive right to their discovery," unfortunately, "exclusive" doesn't mean synonymous with "sole," it means the partial right to exclude (more later). The Patent Office examiners only verify that the description and claims, AS DESCRIBED by their inventors or patent attorneys, are new, unique, and not obvious to the Patent Office. The examiners DO NOT verify that an invention works or that it can ever be, or never has been, built. They try only to correctly verify that the invention is patentable and has not been patented [in the U.S.] before—and their results have been overturned on more than one occasion.

This is despite the fact that, per the USPTO: "The patent law specifies that the subject matter must be 'useful.' The term 'useful' in this connection refers to the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent."

It must be noted here that "[in the U.S.]" above was bracketed specifically because, with the advent of computerized databases of foreign patents, the USPTO now does some checking for foreign patents and will reject your patent application if they find a foreign patent (even if it's yours) that was published more than one year prior to your U.S. filing. Even if they don't find one (because it predates the computerized database or whatever), your patent, if granted, will be declared invalid if it can be shown that a foreign patent existed more than one year prior to your filing or if there is reason to believe you were aware of the foreign invention, and were not its inventor, at the time you claimed you were the inventor in the U.S.

You may also have noted that there was nothing about "ideas" in the above quotes. That is because the patent office does not grant patents for "mere ideas or suggestions." The rules also require that the patent be explicit enough such that anyone "ordinarily skilled in the art" can apply what they learn in the patent to make the invention and make it work successfully.

Back to the issue of "exclusive." A patent merely gives its owner the right (not the obligation) to exclude non-government entities from making, selling, or using exactly what the patent's claims cover in the U.S. The government can make and use your invention without your permission but they do have to pay you a "fair" price. You can't make, use, or sell your own invention if a prior patentholder chooses to enforce a broader patent against you. You can't make, use, or sell your own invention if doing so would violate the law. Anyone can make, sell, and use your invention in the U.S. unless you object. There is some presumption that by getting the patent you automatically object but your actions, or inactions, can eliminate that presumption. For example, I've probably heard 20 or 30 inventors tell people "I'm not in it for the profit, I just want to see my invention improve the world." Make the statement once, maybe no big deal, include it in letters to prospective manufacturers and they may "in good faith" take you up on it.

What the USPTO Really Does

What really happens is that the USPTO (with one exception) errs on the side of the claimant when granting a patent. They do not have the resources or the expertise to determine if all claims made are in fact correct. Occasionally, an application will be rejected if the patent examiner believes the invention won't work; but the bottom line is that the objection will be removed if the "inventor" simply asserts, "I made one (or I tried it) and it worked" or "I've (self-) studied X extensively and I believe it will work." The vast majority of granted invalid claim patents expire without any protest because there is no point in wasting time, energy, and money proving the claimant a fool.

The real question is: At its most basic, a PROFITABLY MARKETABLE invention is: ____a. a great idea; ____b. a solution to a problem; ____c. both of the above; ____d. none of the above. I even gave you "d." this time—but it is not the correct answer. The correct answer is "b. a solution to a problem" and that is the only correct answer. I hear an immediate chorus of, "but people will buy anything," as exemplified by Hula Hoops, Rubik's Cubes, Superballs, and even sucker rotators. Those things don't solve any problem—do they? Actually, yes, they do. They solve the problem of boredom. In fact, the entertainment industry is one of the largest in the U.S. since most people in the U.S. do not have to spend most of their time engaged in activities just to stay alive.

Will it Sell?

If your goal is to get your invention patented and then to have someone else produce and sell it (pouring on you huge sums of money for the privilege), what do you think that someone else will ask as their first question? The first question is, "Will it sell?" If it won't sell, then ANY money they invest in your invention will be wasted. (Your time, great genius, patenting effort and expense, and devoted enthusiasm for the invention are almost useless to the producer/seller.)

Supposing it will sell! Hurray, we've got a winner!!! "Oops, not so fast," your prospective producer/seller says. "What will people be willing to pay for it?" Aaahh..., well... that depends on what the perceived value of having the problem solved is in general, and the perceived value of your solution is in particular. A deck of cards and an electronic video virtual reality 3D game machine might well both solve the same problem, but one will sell for a lot more— REGARDLESS of what it costs to produce it.

Most inventors approach "marketing" from the perspective of "How do I get people to buy my invention?" That is the wrong question. The correct question is "What can I invent that people will buy?" That is a pretty big question, but it is one you should use to filter all your invention ideas. The basic premise of this chapter is (I hope) clear. People want solutions to problems (including boredom) and that is what you should provide with your inventions. A secondary factor you should have noted is that, even if the solution is wanted, the solution must sell profitably, i.e., sell at a price above what it costs to make and distribute but below what enough customers are willing to pay for it.