Do you need a prototype to file a patent?

Glenn W. Peterson

Making the exciting decision to move forward with your idea for a new product in California is a big step. You may wonder whether it would be wiser to make a prototype as a proof of concept, or to secure your intellectual property rights first by going straight for a patent application. Conventional wisdom said to start with the prototype, but in today’s lightning-fast business landscape, prototyping could represent a delay you cannot afford.

Pursuing a patent before you even have a working prototype with which to get investors onboard may seem a bit like putting the cart before the horse. However, it can be a good way to protect your ideas and technological innovations. These could be exposed to potential competitors, should you choose to fabricate a prototype. You cannot be certain who may see key elements of your design, or what they may choose to do with what they see.

It is now recommended that inventors, whether individuals or businesses, use the patent process as a way to identify dependent technologies and related uses. The product should be analyzed with an eye to ways the core idea could be expanded into similar concepts. Then, those possibilities could be protected as well, securing the primary product against competition from unexpected sources.

One patent professional used the modern cell phone as an example, noting that there could be more than 5,000 individual patents covering the device’s components. Each patent makes it harder for a competitor to undermine the product’s success. A physicist who invented a novel approach to tactile touchscreens reminisced that he had not drummed up any investor backing before he had filed his first 20 patent applications on his idea.

Source: Bloomberg, “Startups’ New Creed: Patent First, Prototype Later,” accessed June 23, 2016