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

Jim White
Marketing help for inventors and small businesses. James E. White & Assoc.
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"Will It Sell (and the rest of its long title) gets you into the meat and potatoes of the ball game right from the git-go. White doesn't mince any words on what he feels is the right route to inventing a successful product. Each step of the way, White has a unique evaluation system in-place that lets you rate your progress. The book took over a year to write and has a gold mine of references for those willing to do their homework. Web site addresses abound and stern bit of advice form White confirms his belief in the new Internet revolution. 'If you don't use the Internet, you'll almost always find yourself eating dust these days."' My advice for anyone in the innovation game this is a must read. It may not be the easiest for some to comprehend so I suggest you take your time reading and absorbing. A few hours at a time. Get your yellow marker, highlight and tag the pages that benefit you the most. Will It Sell? is a reference you will be coming back to time after time."
Bill Baker, Minnesota's Inventors Network

STEP 5—Sell a few after filing a Provisional Application for Patent.

Patent considerations for this step: For my money, I'll prepare my own Provisional Application for Patent and file it myself with the $125 fee. I will, however, incur the trouble and expense of having my patent attorney review the provisional application, and I will adjust it as necessary, before I send it in. Filing a provisional application starts a 1 year clock ticking in the U.S. (and many foreign countries). You have 1 year in which to submit the real (non-provisional) patent application. Your filing does 3 things:

  • it (optionally) establishes a priority date,
  • it generally allows you to make-public your invention without losing any rights to it in foreign countries, and,
  • it lets you put "Patent Pending" on your product and/or marketing materials.

Your provisional application must be a balanced amalgam of thorough and broad and specific but need not detail patent claims or prior art. If you have a really truly working prototype you should be able to do a pretty good job drawing up the provisional application. The key is that your future real application CANNOT , if you want the most certain U.S and foreign patent protection, add new features, concepts etc. that DO NOT HAVE SUPPORT in your provisional application. (Actually, it can add stuff, but the added stuff will have the priority date of the real filing and, if your public disclosures included the added stuff, you've probably lost any foreign filing rights.) That is why it is good to have your attorney understand your invention and review your provisional application even if it increases your final legal costs by 300 or 400 or so dollars. The drawings for a Provisional Application for Patent can be informal but must show everything and be understandable (perhaps eventually to a judge or jury).

Make a Real Batch

Depending on cost and quality issues you need to have a test quantity of your product made for sale, i.e., test marketing. Big companies do test marketing all the time. They often do it on a city wide scale in a small to medium city whereas you may only do it in two to ten stores. The test quantity can either be an initial short production run or a batch of prototypes that are extremely close to the real thing. If prototypes are significantly (in the BUYER'S perception) higher or lower in quality than production devices then a market test with prototypes will NOT provide valid results. The worst situation is that you use prototypes that are significantly better in quality and they sell really well. You should also prepare some professional looking packaging—but don't overspend trying to make it your production packaging yet and don't worry if it (or your prototypes for that matter) boost your test market product costs well over your asking price per product. Your objective here is not to make a profit—it is to slash your risk, and the perceived risk of retailer's etc. that will possibly handle your product in the future.

If tooling is required to make your product, and it usually is for plastic or metal parts, I recommend that you go with the most inexpensive tooling possible that is consistent with your quality requirements and the size of the prototype or test production run you need.


Your test packaging should include your company (or DBA) name and logo and a (potential) Trademark and possibly even a copyright notice. Oh no! More lawyers and money. Keep it simple at this point. Trademarks do NOT have to be registered before they are used. In fact your life will probably be simpler if you use your trademark before registering it. Also, a lawyer can be helpful but is not required to register a trademark. Think up a number of possible trademarks. The best trademarks have both no meaning and have an obvious meaning (e.g., Kleenex®, Realtor®, Plax® come to mind). They are made up words that are obvious fits when you know what they are for and are almost understandable when you don't. Kleenex, by the way was not invented for nose-blowing, it was invented for wiping off makeup with coldcream. Marketing repositioned it later. Made up word trademarks are hard to invent especially since misspellings of real words don't count as made up words in Trademark law. For example "Klub" is considered equivalent to "club," "Kurly-Q" to "curlicue" etc.

Follow your trademark with the TM superscript to let it be known that you are claiming a common-law trademark. Yes, this is 100% legal, you don't have to get permission from anybody. See Chapter 7 for more details on trademarks, trademark searching, and copyrights.

Patent Pending

If you filed a Provisional Application for Patent or a full Patent Application do not forget to put "Patent Pending" on your product (if possible) and on your packaging, marketing materials, instructions, etc. for sure. If you consistently, as opposed to accidentally, fail to do this, in the worst case, the courts can construe that as a desire to make the technology available freely for "the benefit of mankind" and in the best case, the courts will simply make it impossible for you to collect damages from infringers prior to proper notification and the opportunity to gracefully exit. Do not put "Patent Pending" on your product or materials if you have taken no patenting steps with the USPTO.

Liability Insurance

If you see a reasonable possibility for your product to cause injury that might make you liable for damages you may want to have a discussion with a business insurance agent. While you won't have much leverage initially, be aware that business insurance rates are negotiable. At the market test stage you are not likely to be able to negotiate much because there is no data for your product although an insurer may have data on similar products. For most products liability insurance should be fairly cheap.

Be careful when looking at the risks of your product. I worked on one project where the inventor thought his product could pinch a finger at its worst. True, the product itself could pinch a finger, but the real liability lay with the product in use. If the product in use FAILED it could drop debris that could easily result in a fatal accident on public roadways. A good insurance agent will be able to spot those kinds of problems. A good insurance agent may also be able to suggest appropriate warnings and instruction disclaimers for your product.

Market Test

Pick two or three locally owned stores if possible that would best carry your product. With the permission of the store owner or manager, and an agreement on how the proceeds are to be split (I suggest starting negotiation with an offer of a 50/50 split of receipts), set up a very small stand which you (or your (paid) marketing representative) will man. Have spaces for 20 or 30 (pick an appropriate number) of your wares but only fill about 90% of them. When someone comes along try to make eye contact and ask them if they would mind helping you answer a few questions. Explain you are a marketer working for whatever your company (or DBA) name is and you have a new product that you are just introducing. A clip board, a pad of questionnaires, and professional attire will all be useful in getting the confidence of prospects. If your product is particularly complex a demo video showing it in action might also be appropriate.

You need a prepared introduction to what the product is, what it does, why it is new, what it does better than competitive products, what it's price is, and ONLY 1 major benefit the customer could get out of the product—fit all that in 30 to 45 seconds before you hit them with your first question. You come up with the benefit list in advance but only burden each prospect with 1 benefit and note which on the questionnaire you complete for them. Ask a few specific yes/no questions, multiple value (better than x—strongly agree to strongly disagree) questions, and open ended (quality perception, design, safety, etc.) questions while trying not to tie up more than 2 or 3 more minutes of their time. Ask questions that you genuinely want answers to—except "Will you buy it?" Conclude your questions with "Would you find a product like this useful?" If they say no, thank them for their time. If they say yes, ask them if they would like to buy one today? If they say yes hand them one and a $2.00 (or as appropriate) off coupon, good only on the product, to turn in at the cash register. Thank them for their help and for buying and hand them an envelope, or have one already inserted in the package, (self addressed to you and postage paid) with a user questionnaire to fill out after trying the product.

You will leave a rack or box or set of product at the store for them to sell in your absence also. Stapled or otherwise attached to each sale unit package will be a proof of sale tag that is meaningless and reasonably unobtrusive to the customer but which store clerks will be instructed to remove and put in the cash register. The coupons and the proof of sale tags combined provide the retailer, in their cash register, with tangible proof that your product sells—and (hopefully) not just when you are there.

In this step you have to get some real buyers and get some (positive) "Will they buy?" answers before you commit to full steam ahead. You're still not out of the woods ( especially if the question is, for all practical purpose, hypothetical—witness the Edsel and New Coke) but, if you have been honestly accepting and evaluating inputs up to this, you have cut your risks considerably. One reader of the draft of this book asked "Why don't you put in some examples here of how to change the test marketing so that sufficient sales to warrant continuing are generated." The answer is, YOU DON'T change your marketing, YOU STOP. It's remotely possible at this point that you have:

  • misidentified the correct target client,
  • not provided the information your market needs to make a buy decision,
  • chosen the wrong retail stores or other channel and/or
  • screwed up your packaging.

What are the odds the idea was wrong versus you failed on those 4 items? The business odds of success after a failure at this point DO NOT usually justify continuing. That said, of course there is the famous story of 3M's Post-It self adhesive notes. They knew, from in-house use and focus groups etc., that the product was wanted—but it just wouldn't sell in office supply stores. My guess is their packaging and in-store displays (if any) simply didn't convey the utility of the product. 3M solved the problem by at first giving away packages of the notes. People that tried them re-bought and spread the word. If you want a marketing savior don't count on me, but for cash up front, I'll look at the situation and see—on a one shot basis—what I can do. As long as you have money to burn there are many "marketers" who will help you till you're sure the product is dead.

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