Copyright & Patents/Selling an idea

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QUESTION: I have a nice idea that combines two existing products to make life a lot better. Let's just say that I have come up with an idea that improves shoes. Because I'm not a shoe designer, perfecting my idea and building a prototype shoe would take me a long time. I would like to simply sell this idea to a company that specializes in my idea, such as, following my example, Adidas. How would I go about this?
Because I can't build a prototype, I'm not 100% sure if the process works.
Using another example, let's say that my idea is a time machine. This is a very good idea but because I'm not an expert on technology I won't be 100% that my process in building the time machine would work. I would like to sell this idea to any company and they will carry out the rest. My idea is not as farfetched as a time machine. it's in reasonable inventing limits but because I'm not an expert, it'd take me much more time to build it than pitch it to a group of experts who will carry out building the mechanics.

ANSWER: As far as the shoe is concerned: Never negotiate with anyone about selling your idea before you have applied for a patent. You would not be the first with a good idea, who tells about this idea to a company, the company says they are not interested, and then they apply for a patent themselves.
There is no plan B for this. You need a patent application to be able to negotiate successfully.

It would be extremely difficult to prove later that you are the real inventor. (And this would only be possible in the US, because all other countries consider the applicant as the inventor.)

So you would have to visit a patent attorney and let him apply for you for a patent.
This is a costly affair, but if you believe you made a great invention, you have to spent this money. Forget about applying for a patent yourself. This is a very specialized job. A working prototype is not necessary when you apply for a patent.

Your second example is simple: a time machine is against the laws of nature and therefore not patentable (in almost any country). I do not believe any company would be interested in such an idea.
If you think different about the laws of nature it would be necessary to convince the patent office with a working prototype.

Regards,
Rene Hasekamp.


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QUESTION: What I meant with the time machine example is that because I'm not an expert in the field, I won't be able to build a prototype of my idea. I have the theory and how it should work but I haven't tested it. Is it still patentable if I'm not 100% sure that my invention will work although in theory there shouldn't be a problem? Also, if I do manage to get a patent how would I sell it to a company without the prototype and proof that this invention will work?

ANSWER: So the question is if something is patentable, despite the fact that you are not certain if it works.

First note the following:

- Ideas as such are not patentable. A patent should disclose some technical invention in so much detail, that an expert in the field can use the patent. It should state the measures taken (the construction made) and the technical effect obtained in enough detail.
- The examiner in the Patent Office decides if the technical effect is likely to be obtained. He / she might ask for some further proof, but if he / she thinks that the technical effect is likely, the patent will be granted. A working prototype will never be asked.
Even then it is not certain that the patent really works, but that is how the patent system has to work.

When you try to sell the patent, the other party will only be interested if it works and will therefore probably perform some tests. If you want to sell sell a running shoe to Nike or Adidas, they will probably see at once if the patent works and they will certainly know how to perform the necessary tests or how to make make a prototype. They are the real experts. The examiner is the theoretical expert, but Nike or Adidas has the practical experts.

You should give them all the details they need to perform their tests, even if some of these details are not obvious from the patent (which often happens, because the examiner at the patent office might overlook some of the "know how"). It is as simple as that.

I hope this answers your question completely.

---------- FOLLOW-UP ----------

QUESTION: I included two crude hand drawings and a one page description of the patent. Is it enough? I don't have much else to write about it.

Also, if I filed for a provisional patent, does it mean that I can write that my idea has a patent pending, and it's not really a patent yet? How long will it take before I can write patent pending?
Thank you

Answer
It is impossible to say, without knowing all the details, what the right length of a patent application should be. One page seems very short. I would say that the average patent application for a simple invention is five pages or so.

Also, I do not know if hand drawings are accepted buy USPTO. But on the other hand if not, you will receive a letter and get a term to bring them in line with the form requirements.
Every patent application should also contain claims, in which the wanted exclusive rights are described detailed. Did you draw up claims?

Please take a look at http://www.uspto.gov/inventors/patents.jsp for all information about how to file a patent application in the US.

This brings me back to a former answer: Consult a patent attorney. I have worked for 35 years at a Patent office as an examiner and in all those years I have never seen an application drawn up by a private person, without the help of a patent attorney, that has led to a patent.
Writing a patent really is a very specialized job.

If the invention is not disclosed well enough, this cannot be amended later without losing your application date. (Some other requirements can, like an overview of the state of the art.)

So my advice really is to visit a patent attorney. If your invention is good, his service will be a good investment.
He will also be able to do a simple search in existing patents and advise you if it is useful at all to apply for a patent.

You also might do a quick search with some keywords yourself, to start with. Go to http://www.uspto.gov/patents/process/search/index.jsp for details. If you do a search in existing patents you will see at the same time how patents normally are drawn up.

As to your last question: As soon as you have filed a patent application, you may write "patent pending".

In my opinion this also goes fore a provisional patent.
Although I have seen them in my career, I am not very familiar with provisional patents, because this system is unknown in Europe. So, some of what I wrote may not be true for a provisional patent.

Hope this helps.

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Rene Hasekamp

Expertise

I can answer questions about European patent law and practice. My experience mainly lies in the Dutch patent practice. I am not familiar with other patent systems than the European and Dutch systems, although I am familiar with general issues regarding patents. Please don`t ask me questions, specific for US patent law or any other non-European patent law.

Experience

I have been a patent examiner in the Netherlands Patent Office for 35 years. Now I am retired. I have been a deputy judge for patent cases in The Hague's District Court from January 1991 until June 2011.

Education/Credentials
I graduated in Chemistry and Law at Leiden University. I have worked in the Netherlands Patent Office as an examiner for 35 years until my retirement in 2003. I was appointed as a honorary deputy judge for patent cases in 1991. After my retirement I still work at a few cases on patent law in The Hague District Court.

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