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Will It Sell?TM
How to Determine If Your Invention Is Profitably Marketable
(Before Wasting Money on a Patent)

Jim White
Marketing help for inventors and small businesses. James E. White & Assoc.
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"Congratulations on a nice manual for inventors. I read Will It Sell? and enjoyed it. It is a nice document, and I am sure it will become popular with the growing invention community."
Doug Gibbs, Gibbs Group


Steps for Product Development

Now, based on what you know from your Focus Groups, Mall Interventions, etc., that were done while working the idea through some basic "Will it sell?" market considerations, it's time to get serious about development. You're no longer just guessing that your product has a chance so financial commitments make good business sense.

STEP 4—Fully design and refine your product.

Patent considerations for this step: Get non-disclosure agreements signed by anyone you work with on development. If it is a manufacturer, or even an individual, whose expertise contributes to executing your ideas I suggest a statement like "Any improvements, whether patentable or not by [manufacturer or assistant name] shall be owned by [your name]." If it's friends (but not inventor's log witnesses) or inventors' club buddies you probably should work out a sharing agreement in advance and PUT IT IN WRITING.

Don't go to your patent attorney until after your invention is pretty close to final as shown by your working prototype. In, my opinion, it is still not time to file a patent application. If you launched the patent application earlier anyway, now is probably where things get embarrassing. You discover your invention doesn't work quite like you thought it would. You can't add new matter to your current patent application so you have to pay your attorney to file a new application or a "Continuation-in-part" for more costs and fees. You also realize you may now have to pay to keep 2 patents, IF you get them, in force.


I suggest you work with pencil and paper first and do several iterations of quick and dirty designs. For most people paper and pencil sketching will probably be faster than trying to do engineering drawings, even on a computer. If it is somewhat complex in the user interface you may want to do some drawing in a computer drawing package because that will make moving around and re-labeling user interface components easier. Pick whatever works for you but assume you will radically alter your basic design as you progress. When you get your quick and dirty design simplified to where you believe it can be simplified no more. Stop and re-look at the problem that you are solving. Try stating the problem in several ways to see if it changes your perception of what "the" (your?) solution might be. For example, assume you invented a toilet seat lifter. Is the problem: Men don't put the toilet seat down after standing; Women don't see that the toilet seat is up; The seat must automatically be up when a man is standing; The seat must be automatically down when anyone attempts to sit? Hopefully, the different perspectives caused you to envision different possible solutions.

Evaluate Yet Again

Now is your solution still the best (simplest, least potential development pitfalls, etc.) that you can come up with? If so proceed, if not, consider the market share that you might garner for your current solution versus reworking while you are still in paper development mode. Committing yourself (and your ego) to a solution too early in the process is a guaranteed way to waste your time and money. If you achieve a simpler solution than the one your potential subcontractor-manufacturer(s) estimated for you—rejoice—you are probably gonna make a bigger profit than you originally thought. If your new solution is considerably different than your original idea, you better recheck your patent search result and look for the product on the shelves again.

Why do you want to go through the above exercise? Why not just accept your invention as is and go? Because you want to avoid getting killed in the marketplace by a big company (or another inventor for that matter) who sees your solution, surmises that it is selling profitably in its market niche, and creates and markets a "better" alternative for the same niche market in 6 months or so. A problem can go unsolved for years simply because nobody recognized a viable market, but once that market is discovered there will be many people who want to see if they can cash in on it (witness the "Titanic" feeding frenzy, that's not an invention example of course).

Finally, A Prototype

I recommend you do as much as you can to complete the design and refine your invention yourself before getting outside (usually paid) help; but don't spend tons of money on tools and hours learning to use them either. You may need to research what standardized parts are available for some things. Your best source for this kind of information might be the machinist or electronics shop that will do your prototype, but it is more likely to be the engineers at your subcontractor-manufacturer's site. Now you can ask for a nailed down quote for just the prototyping if you didn't get one already. Once you have one or more quotes, gulp!, you'll have to commit to spending some real money.

Try the prototype and see if it works. You will probably be embarrassed to discover that it really doesn't work to your expectations. Time to have some fun and refine and retry till you get a prototype that works really well. CAUTION: watch your refinements to be sure that final manufacturing costs won't knock your product back into the unprofitable zone. Needing special materials or time consuming machining or any of a host of things may mean it is time to stop and rethink—maybe even stop entirely.

The Cat's Meow

It is best if you do not keep thinking up refinements for your product, you were supposed to have that pretty well completed in the paper and pencil stage of design. DO NOT keep going back to your help with more and more change suggestions or new questions while they are executing what you already asked for or you'll be the one to blame for delayed delivery and higher costs, not them. Your objective is to get a prototype of a marketable product. Almost all products that sell go through further development and enjoy additional releases of enhanced or refined versions. New automobiles, for example, come out every year.

Familiarize a Patent Attorney With the Prototype

Once you have a fairly solid working prototype and are reasonably certain no more "gotchas" are going to have to be dealt with you have something a patent attorney can accurately yet broadly describe. Remember, you get a patent on what is described, not your revisions to make it work if you gave your original idea to a patent attorney. While you may want to interview a few patent attorneys before choosing one I suggest you pick one then agree to pay the rate for CONSULTATION only to start with.

Take Charge of the Patent Process

You are in charge of the patent process. Listen to your patent practitioner for advice but make your own decisions and make it absolutely clear you will pay for what you ask for. In the end the Patent Office can still reject your patent regardless of what you have invested in it. Your attorney (and your money) will not control the outcome—and they wouldn't even if you were a big corporation.

Not Patentable? So what!

If you get a patent in the future, of course you have a good marketing edge that will certainly help you achieve the projected profits you computed in earlier steps—and, of course, still assuming that the market WANTS your product. But what if you won't be able to get a patent? Or what if a patent could be easily engineered around? If your initial market analysis and cost projections done in earlier steps are still valid then your answer should be "So what!" If you still stand to make a profit, and Mr. Merrick and Mr. Tripp both cite examples of unpatented product ideas that do, there is no reason you shouldn't succeed. All a patent does is provide a temporary roadblock to knockoff competition anyway—it does not block competition from others with different embodiments of solutions to the same problem. Patent or not, you can and should provide yourself with trademark and copyright protections. A good trademark can be a pile of gold and yet be very inexpensive to get and defend. (More later)

Remember, at this point all we have is a working prototype, we still haven't proven it will sell, so all money spent so far, including patent or consultation expenses incurred, are still at risk. You can still keep your financial risk down by not yet submitting a patent application so you might want to talk the pros and cons of that over with your patent attorney before proceeding with the next crucial marketing step.

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