by: Hanna Walther
A Deep Dive Into Product Patents and Why Protecting Your Intellectual Property Is Essential In Ecommerce
If you’re fairly green to the world of patents, product development, and how to make intellectual property work for you (and not against you)… let’s jump right in!
Obtaining a patent means an inventor has an exclusive right, granted by law, to protect their invention from being reproduced or sold by another business or individual.
When a product is patented, the patent owner (typically the developer of the product) is the only person who can control how that product is produced, manufactured, and distributed.
The Pros & Cons of Patenting
If you’re an inventor or a business owner with the next big product… should you consider patenting your product sooner rather than later? Here’s a deep dive into the pros and cons of patenting for an inventor.
Pros of Patenting
Once a patent is finalized, the inventor can control how the product or process (now considered their intellectual property) is used. They alone control the use of the patented item.
Patents can increase in value over time as the inventor does more research and development, and expands on the original product’s abilities or functionality
A patented product or process is completely off-limits to the competition to reproduce, sell, or use.
It’s worth investing more time and money into the design and production of a patented product because it can’t be replicated. That product owns the market.
You are safeguarding the work you put in to invent a product or process and securing the ability to control the fate of the product.
Patents prevent knock-offs and provide the inventor with material recognition for their intelligence and creativity.
Because a patented product owns the market, there is a massive ROI in investing in patented products.
Cons of Patenting
The time to apply can be extensive; particularly for Utility patents. You may encounter multiple appeals and reviews before obtaining the patent.
The cost can be substantial. From all the related fees, application reviews, and attorneys, you can expect to spend at least a few thousand dollars to patent your product.
You have to file patent rights in every country that you want exclusive rights, not just in the United States.
Patent infringement can be messy and expensive to pursue if someone violates your patent rights.
Patents expire between 14-20 years, so you have to get the patent reissued or anyone can use the invention.
Types of Patents for Ecommerce Sellers
Design Patent
A design patent is a legal protection a person can procure on the unique, visual qualities of a manufactured item. It prevents any copycat items from being produced and sold by competitors in any industry.
Design patents are valid for 15 years, and are typically granted within 12 months (from beginning the application process to the application being submitted, accepted, fees paid).
A design patent costs between $2,000 to $4,000 and while they do offer valid protection from replication by competitors, they can be easy to get around. They are easier to get approved than a utility patent; nearly 95% of all design patent submissions get approved.
Utility Patent
A utility patent protects the creation of a product, process, or machine. This can either be a new product, or an improved version. With a utility patent, companies can not create, use, or sell the invention without specific permission to do so.
Utility patents are extremely specific to products and processes, making them highly valuable for an inventor or business to hold because it allows them exclusive rights to produce and sell useful, innovative technology and methodology.
Utility patents are difficult to gain, because of their specificity and how much they protect an original invention. Utility patents last for 20 years and are notoriously difficult to secure, and the cost is typically higher than a design patent.
A patent attorney is highly recommended if you are pursuing a Utility patent. Their knowledge of patent law is vast and they can help you avoid roadblocks along the way.
This is the point in the article where you may be scratching your head, wondering if a patent is what you need for your product, or if copyright or trademarks are what you should be pursuing.
Here’s the breakdown of copyrights, patents, and trademarks.
A copyright is a collection of rights that are secured, or vested, to you upon the creation of an original work. The rights behind copyright include the ability to reproduce your work, distribute copies, perform or display the work publicly. A copyright owner has the ability to transfer their work through licensing and other assigning transfers.
A patent incentivizes inventors to share their inventions with the public in order to claim exclusive rights of their invention and its surrounding entities. A patent provides certain levels of security and protection for a unique product.
Patents typically protect things like machines, manufacturing processes, computer programs, and more. The patent process is known to be the most strenuous, complex, and time-consuming of the three.
A trademark is “a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods.”
Trademarks are often associated with brands and logos. Trademarks primarily prevent others from using similar “marks” (branding, logo, or a slogan) to yours in a way that could confuse consumers about its originality.
Some marketplaces offer ways of protecting the brands that sell their products online. Amazon’s Brand Registry exists for this exact purpose — to prevent a company’s products or brand from being infringed upon by other sellers in the marketplace, using search tools and a dedicated support team.
Amazon also offers a service called IP Accelerator that helps expedite the trademark process to quickly obtain rights to your intellectual property.
Where and When to Get a Patent
During product development, we highly recommend using USPTO (the United States Patent and Trademark Office) or Google Patent Search to discover which patents are already disclosed on products or processes similar to yours.
You can search for brand names and relevant keywords to find the patents that your competitors currently hold on their products.
If you have the funds available to avoid the headache, we recommend hiring a patent search attorney to do the evaluation for you to determine if your product violates any competitor’s existing patent.
However, most small Amazon sellers can do their own research and avoid the high cost of attorneys.
How to Apply for a Patent
1. Determine whether you need a patent, trademark, copyright, or a combination of these before applying. The explanation above should help you determine which one is best suited for your product.
Find more about patents, trademarks, and copyright information here.
2. Determine if your IP (intellectual property) is patentable and if it’s already been publicly disclosed.
- If it has been claimed, then you can’t get a patent on your product.
- It’s highly recommended to hire a patent attorney to do this research for you
- Learn how to do your own patent research here.
3. Determine the patent you need
- Design — for anyone who invents a new, original, and ornamental design for an article of manufacture.
- Utility — for anyone who invents or discovers any new and useful process, machine, article of manufacture, compositions of matter, or any new useful improvement.
4. Prepare the application
- Once you’ve determined what type of patent you’re applying for, decide whether you’ll be using legal services to assist you with the application process.
- Fees to consider: search fee, examination fee, issue fee, and more
- Select to file a provisional application. Provisional is a quick and inexpensive way for inventors to establish a U.S. filing date for their invention, which can be claimed in a later-filed nonprovisional application.
- Decide if you want to pay to expedite the application process.
5. Submit the application
6. Work with an examiner on the application
- Once your application is considered complete, an examiner will be assigned to review all the documents and ensure it meets all requirements.
- If they determine it doesn’t, you have the opportunity to make amendments or argue the rejections.
- If your application is rejected twice, you can make an appeal to the Patent Board.
7. Receive patent approval
- You will receive a Notice of Allowance if your patent is approved.
- This will include the fees you must pay before the patent is issued.
- You will typically receive your patent 4 weeks after all fees are paid.
8. How to maintain your patent
- Most patents have a maintenance fee that must be paid every 4, 8, or 12 years past the issue date
- If not paid on time, some patents may expire
What Qualifies as a Patentable Product?
Utility patent requirements
A "process" is defined as a process, act, or method, of doing or making something, and primarily includes industrial or technical processes.
A "machine" would be anything that would commonly be considered such, from a clockwork to a tractor to a computer.
The term "manufacture" refers to articles that are made and include all manufactured articles.
A "composition of matter" is a chemical composition, and may include mixtures of ingredients as well as new chemical compounds.
Utility patents are very broad in the sense of what they can protect. It could be a highly technical software process, the composition of matter (like a combination of ingredients used in pharmaceuticals), or the process and method of treating a disease.
Design patent requirements
A "design patent" protects the way an article looks. Since most manufactured items possess both functional and ornamental characteristics, both utility and design patents may be required to protect the invention.
Some design patent examples include Crocs shoes, font families and icons (emojis, anyone?!) the computer mouse, and the infamous iPod shuffle.
Handling Patent Litigation
Patent litigation can be a very expensive route, particularly for products where large companies hold patents with a similar product. Here are a few scenarios to familiarize yourself with when it comes to Amazon patent violations.
If someone is violating your patent on Amazon — What do you do?
Amazon’s neutral patent evaluation procedure is an internal review of patent violations made by sellers in the marketplace.
The accusing company spends $4,000 to claim a company is violating their patent and why. The competing company has to pay the same cost to claim and submit its rebuttal.
A patent attorney evaluates the claims and makes a decision. If you win the case, you’ll get your money back and the competitor will lose theirs. If you lose, you lose your money.
It’s a strategic move to first go after any little guys who are violating your patent to get some litigation wins, so you can better enforce the legitimacy of your patent should any bigger cases present themselves.
If you get a Cease and Desist letter from another company, we recommend hiring a patent attorney to evaluate your product. The attorney will tell you the risk and liabilities involved, if you should stop selling it, or if you should continue on because the violation isn’t legitimate. Counsel with your attorney on strategies you should take to handle this.
For more useful information on patent litigation and how it affects ecommerce as a whole, check out this video with Paul Johnson (Massview Founder & CEO), as he discusses the strategies behind handling patent violation issues as an ecommerce seller.
Final Thoughts
If you’ve got the next big product and want to protect your intellectual property from current and future competition, pursuing a patent is an advisable move.
With that comes a huge investment of time, money, and effort to ensure you are successful. For those with limited resources, this can be a huge challenge and can sway a business or inventor away from patenting their product.
If you can, contact a patent attorney and have an introductory conversation. Discuss your concerns and then you’ll be able to make an informed decision on the best strategic move for the longevity of your product and ultimately, your business.