business builder patents
Before unveiling at
a trade show, stop to
protect IP rights
by Kimberly Baxter
So, you have technology that you think is going to set the market on fire. Your first thought: Take your idea to a trade show and gauge the reaction of potential customers. The trade show also would provide you with the opportunity to wow your competitors and show them that you are on the cutting edge.
Stop right there! A trade show should not be your first thought. You should be thinking, “How can I protect this technology and prevent the competition from stealing it?”
One of the best ways to protect technology is to obtain a patent. The date on which you first show or disclose the technology is critical to the amount of patent protection you can receive.
In the United States, you have one year to file a patent application after making a public disclosure of your technology. Most other countries provide no such one-year grace period. If you are interested in any type of international business, that trip to the trade show without first filing a patent application just cost you your international patent rights.
If international protection is not a concern, then why not take the opportunity to go to the trade show first, and determine if the reaction to the technology is good before you invest in patent protection?
The reason is that even if you file a patent application after the disclosure of your technology at the trade show, you open up the possibility that a competitor may see your technology, reverse-engineer it, and file a patent application itself within the year. Even though you are the original inventor and filed within your grace period, there are now two parties attempting to patent the same invention.
Now, the patent office must determine who should be awarded the patent. In the United States, a patent is awarded to the first to invent rather than to the first to file a patent application. However, determining the first inventor can be a long process, limiting your profit-making ability on that technology.
Questions to ask
Before you show off your fabulous new technology at a trade show, consider:
1. Would I have a competitive advantage if I were the only one able to make or sell this technology?
2. Does the technology have the potential to be a big money maker?
3. Is there a wide market for this?
4. Does there appear to be no one else with a similar product?
If the answer to any of the above is yes, before going to a trade show you need to call a patent attorney and get the ball rolling to determine if filing of a U.S. patent application is right for you.
Filing an application might be the logical next step, but can you afford it? The real question is, can you afford not to? Without a patent, the doctrine of free enterprise dictates that your technology can be copied and distributed without any compensation to you (presuming copyright and trade secret are not in play).
But, you ask, “What is that piece of paper with gold seal and ribbon really going to do for me?” It’s going to give you the right to prevent others from making, using, selling or importing your technology in the United States and, most importantly, it’s going to give you a tremendous marketing tool.
Wouldn’t it be great if you could go out to a customer and say that we are the only ones who can make this product for you? One case in point is Select Comfort, a manufacturer/seller of air mattresses and a Minnesota-based company that sells in national and international markets.
Select Comfort made a major advertising transition from selling under their company name, “Select Comfort,” to selling under the brand of the “Sleep Number” bed or the “Sleep Number” store. The reason for the change lies in their Sleep Number patents, which were written by our firm.
Select Comfort owns patents in the United States, and across the world, allowing them to claim themselves as the only air-mattress manufacturer that can provide a numerical scale readout for adjusting the air pressure in an air mattress bed.
Select Comfort filed their patent application on an air mattress with numerical readout before showing off the concept, and today they are reaping the benefits of having done so.
[contact] Kimberly Baxter is a partner with Patterson, Thuente, Skaar & Christensen, an intellectual property law firm based in Minneapolis: 612.349.5740; baxter@ptslaw.com; www.ptslaw.com
