Is it possible to patent an invention before it is marketed?

Patent an invention before it's marketed

Many entrepreneurs and professionals detect, from time to time, solutions and new ideas to certain problems suffered by a number of the population. To make life easier for their potential customers, these companies decide to integrate these solutions into their businesses. 

The problem is that many think that their new idea or invention will not occur to anyone else. And that's a mistake. As hard as it may be to believe, if you don't protect your invention before you commercialize it, you are exposed to a lot of risk. In fact, patenting an invention before commercialization is necessary to prevent third parties from appropriating the manufacturing or marketing of that product or process. 

Next, we will look at the step-by-step procedure for registering an invention in order to obtain exclusive rights over it, preventing others from making a profit without the consent of its inventor. 

How to patent an invention: 4 basic steps

In general, there are 4 steps to follow, in this logical order, to patent an invention effectively and quickly: 

1. Knowing the requirements for patenting an invention

First, you must make sure that your invention meets these requirements so that it can be protected as a patent:

  • Novelty: The invention must be novel, that is, it must not exist previously as so called “prior art”, or better said, the invention must not have been previously disclosed to third parties.
  • Inventive step: The invention must not be an obvious solution for a person skilled in the industry on which the invention is based, nor must it be an obvious derivation from an already existing invention. 
  • Utility or industrial application: The invention must be useful or applicable to an industry or business sector, that is, it can be manufactured or used in some type of industry. Basically, this requirement answers the questions "Is this invention useful? What industrial application does this invention have?” This means that it is sufficient for the invention to solve a problem, but it does not necessarily mean that it is marketable, for example, because it is expensive to do so. In the latter case, it is still possible to obtain protection.

2. Preliminary research process

The next step will be to investigate what documents exist in relation to that invention. This information can be found at the relevant official patent agencies, both nationally and internationally, and at patent locators such as Invenes, Latipat or Espacenet

Once the research has been carried out, one of two conclusions can be reached:

  1. The requirements are met and you can proceed to apply for a patent.
  2. The requirements for patenting are not met, but it is still possible to protect it as a utility model. 

But how does a patent differ from a utility model? While a process, apparatus, formula, medicine or manufacturing method can be registered as a patent, a tool, device or part thereof, technical improvement or mechanical inventions can be registered as utility models.

In particular, utility models can be understood as "small patents" since the requirements for their protection are less strict than those for obtaining a patent. In other words, obtaining a utility model does not require an inventive step, or this requirement is more lax. Also, the duration of its protection is shorter (varying between 7 and 10 years, while patents are 20 years). Thus, in general, the process of registering a utility model is considerably simpler and faster than the registration of a patent.

3. Drawing up a descriptive report

The next step in patenting an invention is to produce a report in which the technical part of the invention must be reflected. It must describe in detail each of the characteristics of the invention, emphasizing the novelty. 

This must be drafted in accordance with the Patent Act and will consist of the following structure:

  • A concise title describing the invention.
  • Summary of the technical information.
  • Detailed description.
  • Claims: this is the part that defines the protection.
  • Drawings that help to understand the invention.

4. Processing 

The last step is the processing of the application. Here you will have to fill out the forms of the patent application for its presentation before the industrial property offices of the country where you want to register your invention. Along with this, you will have to pay the corresponding official fees, which vary from jurisdiction to jurisdiction. For example, in Spain the application must be filed with the OEPM (Spanish Patent and Trademark Office), in Chile with the INAPI (National Institute of Industrial Property), in Africa with the OAPI (African Intellectual Property Organization) for any of the 17 member countries of that organization, in Belgium, the Netherlands and Luxembourg it must be filed with the BOIP (Benelux Office for Intellectual Property), etc. Some of the offices allow online filing. For this purpose, it is interesting to consider the international patent system of the World Intellectual Property Organization, known as PCT (Patent Cooperation Treaty), which allows patents to be obtained in a large number of countries with a more expeditious procedure than if it were to be filed in each country separately.

Once you have obtained a patent registration, the respective office will give you a patent registration number, which means that from this moment on you have exclusive rights over the invention you have patented. 

One thing to keep in mind is that the patent for your invention will be protected only in the country where you register it. This means that it is a territorial right and that, depending on your budget and geographical interest, within 12 months (from the date of the first application) you have the option to extend the protection to another country of your interest.

Each Patent Office is governed by the internal legislation of its country for the purposes of processing patent registration procedures. Therefore, it is important to have the advice of a lawyer who is an expert in this area to assist the inventor and applicant in procedures of this nature. International searches are not easy to do, and generally require the help of people who are knowledgeable in the subject. On the other hand, once the international searches are done, if the invention has enough novelty, “inventive step”, and has industrial application, the most important stage in the procedure of patent registration comes next: the filing of the application. The vast majority of people who try this without the assistance of a lawyer make innumerable errors that, subsequently, imply loss of time and money as well as innumerable corrections to the application, be it to the descriptive report, specification claims, or the drawings of the invention. 

Is it advisable to patent an invention before commercializing it?

Yes, it is always advisable to patent an invention before commercializing it, because this way the inventor can decide who can manufacture or commercialize their invention. Thus, no one can commercialize that invention or procedure, nor benefit from it without the approval of the owner. 

Once your invention is protected as a patent or utility model, then you can start commercializing it to make your invention profitable. Don't forget that from here on you have to attract customers, investors, give visibility to your value proposal and transparently communicate the benefits of your invention.

Developing a new invention requires a lot of effort and work, and thinking about how to patent an invention is an additional burden in that process, but it is necessary to ensure that everything is well protected. If you plan on marketing it, do not forget to register the brand (as a trademark) under which you are going to sell it. Make sure to tie up all your loose ends!


Author: Eric Lindemann

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