You now need to decide whether there’s enough justification to take your idea any further. It may on paper be novel and have market potential, but that doesn’t automatically make it worth exploiting.
In our view this is the most crucial Project of all. So far there’s been no need to spend or risk much. Go further and that will change, in ways you won’t always find easy to control. This Project therefore instructs you in some necessary tyre-kicking and pitfall-avoiding skills, all commonly ignored by gung-ho inventors with often dire consequences.
By now, you may feel confident that your inventive step isn’t covered by prior art and that there could be a market for a product incorporating it. You may perhaps also know that it works, if you’re working out of our sequence and have made and tested a prototype.
This may encourage you to go full steam ahead to the next stage, but that will propel you out of the comfort zone of thinking about developing and exploiting your idea into the discomfort zone of actually doing it. You may have got to Everest base camp in one piece and high spirits, but next comes the mountain itself.
From now on, exploiting your idea as a business venture – which is what it is, even if your aim is a royalty deal with a company – will commit you to significant effort and financial risk. So are you absolutely sure there’s enough justification to go ahead?
As we explained earlier, significant novelty means that your inventive step shouldn’t be just a little bit different from what already exists, but different and better by a large enough margin to impress anyone familiar with that technology. The reaction shouldn’t be ‘So what?’ but ‘That’s clever’. If it’s different but not clearly better, it should at least be an alternative that offers new advantages, such as the ability to do something more quickly or more cheaply.
Significant novelty is a very high bar and not many inventions clear it, so let’s review what you’ve got out of Project 1.
Project 1 may have told you there isn’t enough prior art to kill off your inventive step. But that doesn’t automatically make it a winner. It just makes it not dead.
What you need to have is an inventive step so novel that it has the potential to be strongly protectable, because only strong intellectual property (IP) has commercial value. Weak IP is usually worth nothing even if it’s a granted patent. (Wait for Project 5 for an explanation, or go there now if you’re desperate to start scratching your patenting itch.)
To get some idea of the potential strength of your inventive step you need to estimate how much of it might still be significantly novel after you’ve subtracted bits of it that appear in descriptions of other ideas. Patents are by far the richest source of detail of other people’s ideas, so that’s where you have to look even if you don’t need or want a patent.
When evaluating a patent, you have to look not just at the claims made for its novelty, but also at the description of the idea (all other text and drawings). Claims are of primary importance to the owner of a patent, but for your current purpose anything in a patent could be prior art. It’s quite possible that a patent could contain some piece of information not mentioned in any of its claims, but which could erode the novelty of your inventive step so much that there might be little point trying to exploit it.
Sometimes there is such a large number of similar patents - and thus an even larger number of claims - in a particular technology area that there is very little scope for new entrants. If you’ve so far looked at patents only individually but you know there are lots of them, you should now consider the effect sheer weight of numbers might have on your prospects of worthwhile IP. You could find yourself too hemmed in to stand much of a chance - rather like being at an overcrowded party, where the food and drink is only feet away but you can’t get at it even though nobody in particular is trying to stop you. For example, there are currently at least 66 patents for floating soap (based on the occurrence of the term ‘floating soap’ in titles alone). There isn’t much to soap and there isn’t much to making it float, so one has to question how strong many of those 66 patents can be. If you then come along with the 67th, you’ll probably need a technology breakthrough of Nobel prize- winning proportions to stand much chance of acquiring strong IP.
It’s also worth noting who owns the patents that threaten or surround your idea. If one or more major companies clearly have a tight grip on 'your' technology area, be concerned about three things:
If you doubt your ability to do all of the above - and it certainly isn’t easy for most non- professionals to do well without practice - pay a patent attorney to do it for you. If you think your idea looks promising, this could be money very well spent. Ideally, pay to have the whole of Project 1 redone professionally but if cost is a problem and you’re confident of your basic findings so far, it may be enough to ask the attorney to advise only on the patents you found in Project 1. Two pieces of advice though:
You’ve worked through Project 2 and think your idea has definite commercial potential. But something else is much more important than that: other people have to think so too.
The potential for strong IP needs to be there but it’s not a big crowd-puller. It will matter later but only commercial potential has the magnetism to attract other stakeholders in the first place.
Significant commercial potential means not just some sales and some profit. It means sales and profit on a large enough scale to make all the risk generated by your idea worth taking.
So forget for the time being how many people might want to buy a product based on your inventive step. Much more important is how many will want to sell it. All a purchaser puts at risk is the ticket price of your product, but a company or entrepreneur may have to gamble millions just to make it available.
And it is a gamble, because in business as elsewhere there is no such thing as a guaranteed winner. There are successful new products that with hindsight look like obvious winners, but talk to the people involved and you’ll often hear a tale of doubt-laden development, pre-launch jitters and careers on the line.
You therefore need to review carefully any responses you’ve had to your idea in Project 2. As we said then, good responses from the demand side (potential customers or end users) can be easy to get but suspect, even downright treacherous. It’s harder to get opinion from the supply side (manufacturers, retailers etc) but that’s what you need for ‘grow it or throw it’ decisions. If you’ve already sounded out the supply side, are you confident that you’ve got a wide enough spread of responses from people who really know their stuff? And are you confident that you know the relevant market sector well enough to evaluate those reponses accurately?
Often, the ideas that are hardest to make a decision about are those that fall into the ‘so what?’ category. A ‘so what?’ idea is one where yes, it’s novel and yes, it could sell – but not enough on either count to get the adrenalin going. The inventor can see it selling by the ton, but to others it’s at best just another log on the fire.
Deciding what is and isn’t a ‘so what?’ idea can be subjective, so here are what we see as the essential distinctions:
It’s impossible to give exact costs for developing an invention so this is all very approximate, but to stay below about £10,000 you probably need:
Going beyond this project means committing yourself to developing the business potential of your idea. As soon as you do that, something very significant will happen that not every inventor is comfortable with. Prospective stakeholders will start looking not just at your idea but also at your ability to help make it succeed. Shrewd investors tend to back not the idea but the person, on the reasonable grounds that an inexperienced or incompetent entrepreneur can ruin even a brilliant idea, while a good entrepreneur may work miracles with an unpromising idea. So how might you measure up to the challenge?
There’s often a genuine dilemma here. It’s probably fair to say that few inventors want to run a business. They prefer, and will probably be right to prefer, royalties from a company. That may be you too. But to get even close to a licensing agreement it’s unlikely that you’ll be able to avoid managing the early development of your idea as though it were a business.
In practice this isn’t hugely difficult and you may find you like it, but it does require at least some effort and motivation. Again, there are issues here that will be developed more fully in later Projects, but key questions for you to ponder now are:
It’s reasonable to assume in an increasingly services-based economy that, if you think of an invention, there ought to be people you can pay to make a commercial success of it without your having to lift a finger. And indeed there are. They’re generally termed invention promoters or invention brokers, and there are plenty of them around. If you want to use one, go ahead - but first give yourself a thorough grounding in the methods some of them use.
An important measure of whether to go on with an invention is: what’s it worth to the inventor? Too little, and there may be no point carrying on.
Invention lore says that nothing less than millionaire status will do, but in reality many products make relatively little for their inventors even when the licensee company is being scrupulously fair. Some inventors we know are happy if their royalties pay for a decent annual holiday. Others get much less.
Putting actual figures together is something for Project 10, but an inventor’s ‘take home’ from a typical consumer product may amount to only one or two pence per pound of retail price. By that yardstick, a high-priced product that could sell in large volumes for many years could be worth a significant level of development cost and should attract other stakeholders to share the risk, so maybe it’s safe to carry on.
At the other end of the scale, a low-priced, low volume product with a short life cycle but high development and IP protection costs may best be ditched right now. If your invention will never make you much but could lose you a lot, there may be no safe alternative. Other stakeholders are unlikely to be tempted, so whatever risk is around will fall entirely on you.
A SWOT analysis can be a good way to help you and other stakeholders make decisions about your idea. We don’t want to dwell on why it’s a universally recognised management tool (try Google > ‘SWOT analysis’ for more than you’ll ever need to know) but it’s especially useful because:
Once you’ve laid your idea on the slab and carved it into many meaningful pieces, you can then start figuring out how you might (a) capitalise on the strengths and opportunities and (b) deal with the weaknesses and threats. It also helps you to prioritise tasks or divvy them out among team members (Project 7).
A benefit of SWOT analysis is that it combats the temptation to think only in terms of strengths and opportunities. There are always weaknesses and there are always threats. Find them, and you can start disarming them. Miss them, and they’ll nail you later. Do a diligent SWOT analysis and in return for a couple of hours’ thinking and jotting you could end up with a clear, credible and near-professional analysis of your idea’s prospects and what you might do to improve them.
The elephant in the living-room is the drawback so huge that either it’s missed entirely or people around a driven, but-me-no-buts inventor choose not to mention it. The elephant is often something very basic. For example:
It may be that your idea is covered by prior art but there’s no commercial product anywhere and you’re convinced it could sell. One possible strategy is to forget about being an inventor yourself and become an entrepreneur. Contact the owner of the patent that stymies your idea. If he or she is getting nowhere with the idea and the patent is still in force, it may be possible to strike a mutually advantageous deal based on you being the licensee of the other inventor’s IP. If the idea hasn’t progressed very far the effect may be that you become a sort of surrogate inventor, so the projects in this book could still be relevant.
Alternatively, there may be an existing product but it isn’t being sold in the UK. How about trying to import it, or negotiating for a licence to either manufacture it here, or to redesign it for a different application or a different market? If you’re entrepreneurially minded, something may be possible.
These kinds of strategy may not work if prior art patents are held by major companies (they’re unlikely to license cheaply, if at all) or if there are too many similar patents (it’ll be a nightmare to deal with several IP owners, perhaps none of whom has particularly strong claims). You also have to think long and hard about why, if the idea is so good, there are no products. Look out for the elephant.
Getting a second opinion
If it’s difficult making decisions about your idea on your own, it may help to seek a second opinion. Many inventors are so fearful of disclosure that they internalise too much and so get locked into one inflexible way of thinking about their idea, which is how the aforementioned elephants can breed so easily.
OK then - what’s it to be?
It signifies that past this point, things will be different. You'll no longer just be thinking about your invention. You'll be involved in doing lots of challenging but positive and enterprising things to make it succeed as a product. Are you resourceful enough and ready enough to cross that threshold?
The following checklist is partly an action planner and partly a reminder of what matters. If you’re tempted to think ‘I don’t need to do all this stuff’, it may help to point out that we’ve modeled the checklist on questions professionals are very likely to ask if you want their advice, support or money. We therefore have to be stern and say that if you aim to be a respected and successful inventor, you can’t afford to duck any of it.
For obvious reasons you need to prove that your inventive step works. That usually means a series of increasingly polished prototypes.