In my work as a Silicon Valley patent attorney, I have worked with many inventors and founders. I notice that successful inventors and founders share one trait: they validate their ideas through many iterations and customer trials, and carefully take notes of their successes and failures before they arrive at a successful product or service. If you want to find out how to be successful at inventing new products and services, read on.

Ask potential customers to pay for your startup idea as soon as possible, ideally before you start building your product.

New startup founders often ask this question: How can I tell if my customer pain analysis is real and show investors that my start-up idea will become a unicorn?

A unicorn invention is a term used to describe a highly innovative and valuable invention or technology. Once you have an idea, how can you make sure it is viable and deserving of unicorn IP protection? The answer is that you should try to actually sell it as soon as you can. This is the easiest way to determine if it’s viable, even before the product is actually created.

Do not fall into the founder failure trap of spending too much time on v1, before speaking to one customer, or polishing investor decks before you get any validation. When evaluating your idea, the most important thing is to get out of the building and talk to three potential customers. Ask them: “If I had a product capable of doing XYZ, and it costs $X per month, would you sign up with your credit card?

A good idea is one that has paying customers

To validate your idea, you should find ten people who are your target customers and ask them to buy the hypothetical product in advance. Do not start building the product. Do not create an investor deck. Do not make an investor deck until you find these ten customers.

Having a customer whipping out the credit card is the best way to validate your idea.  If you approach them with a more general question such as “I am working on XYZ. What do you think of the idea?” your interviewees may provide a false answer as they want to help you feel good about your idea. That’s why they are talking to you. They want to help you and won’t let your hopes and dreams go unfulfilled by a negative answer.  Hence, even if they don’t like the idea, they’ll still say “That sounds interesting.” 

But this is not the same as being willing to pay for the product in advance. To really learn something, it is important to make the question concrete and focus on that person and her wallet.

Thus, if the prospect won’t commit to buying out of their self-interest, it won’t matter how great your idea is, it lacks legs. If the answer is yes with a check in hand, you should file a patent on the idea right away and start building the product! 

Why should you file a patent as soon as possible?

Your offers may trigger the on-sale bar to patenting.  For example, an offer to sell a waste disposal device was considered a barring sale even though it had not been invented yet.

In the US, the on-sale bar applies if the invention is both:

  1. The subject of a commercial sale offer is not only for experimental purposes but also for commercial purposes.
  2. Ready for patenting under Pfaff, v. Wells Elecs., Inc., 525 U.S. 56, 67, 48 USPQ2d 1601, 1646-47 (1998).  Ready for patenting occurs when the invention has been reduced to practice, or that enabling disclosures have been made.

If there was a definite or offered sale more than one year prior to the effective filing of the U.S. patent application, and the subject matter or sale fully anticipated the claimed invention or would have made the claimed invention obvious through its addition to the prior arts, an impermissible sale occurred. Ferag AG v. Quipp, Inc., 45 F.3d 1562, 1565, 33 USPQ2d 1512, 1514 (Fed. Cir. 1995).

Globally, you can lose patent rights when you start commercializing your invention (such as a sales pitch or public disclosure of the idea) because such offers can be used as prior art against a subsequent patent filing. Thus, you should patent first before discussing your ideas with customers.

The good news is that US laws provide for a one-year grace after a public disclosure of your invention to file your patent application.  However, in the rest of the world, there is no such exception, so it is best to file a patent application as soon as you find customers willing to pay for your proposed product or service.

Here are some steps that can be taken to validate and protect a unicorn invention with patents:

  1. Conduct a patent search: Before applying for a patent, it’s important to conduct a search to ensure that the invention is new and not already in use. This can be done by searching the USPTO’s database or hiring a patent attorney to conduct a comprehensive search.
  2. File a provisional patent application: After conducting a search, the next step is to file a provisional patent application with the USPTO. This type of application allows an inventor to establish an early effective filing date for their invention and gives them up to 12 months to file a non-provisional application.
  3. Conduct market research: Before investing in a patent application, it is important to conduct market research to validate the potential value of the invention. This may include identifying potential customers, competitors, and the size of the market.
  4. Test and improve: Once the market research and patent search are done, it’s important to test the invention to make sure it works as intended and to improve it if necessary.
  5. File a non-provisional patent application: After testing and improving the invention, the next step is to file a non-provisional patent application with the USPTO. This application should include a detailed description of the invention, drawings, and claims.
  6. Wait for examination: After the patent application is filed, it will be examined by a USPTO examiner to ensure that it meets all legal requirements and that the invention is new and non-obvious.
  7. Respond to office actions: The USPTO may issue office actions or objections, it’s important to respond to them in a timely manner and to work with a patent attorney to address any issues that arise.
  8. Maintain the patent: Every 4 years from grant, you will need to pay a maintenance fee to keep the patent alive.

Is it possible to sell something you don’t have?

Investors like to hear traction proof based on this “get to the sale before building the product” approach. Your reply to a potential customer purchase order from the  customer validation call can be as simple as: “Fantastic, can we add your name to our beta list, and we’ll let y’all know when the product is done.”

Instead, you can approach the conversation in the following way: Begin by asking them about their biggest pain points. You’re right, I’m building a tool to solve your #1 problem by doing “XYZ.” Is that something you would use? It would cost $X per month.

You can follow up with “Okay, if this existed today,” if they answer “yes”, and “Okay, would you give your credit card to me right now?”

If you get a “no”, make sure to look at the why. If you get the answer “No, I wouldn’t pay $X right away,” that’s perfectly fine. Perhaps they would rather spend the money on a pressing matter. In that case, you may have a better business idea. Perhaps they don’t have enough money. Perhaps their boss is the real buyer. You’re getting something concrete and tangible about the things you need to build it and how you will sell it once it’s finished.

To make the conversation as real as possible, you can do mock-ups or prototypes to show your prospective customers details of the proposed product. A prototype is a physical representation of an invented concept. Usually, a prototype is an inexpensive and relatively simple product. These can be made from a variety of materials, and can help you understand what it is you are trying to accomplish. You can also use a prototype to gather feedback from potential customers.

Having a prototype can be a lot of fun. If you have a good prototype, you can even make a video of it and display it to a customer or even a patent examiner. The video will show off the most important elements of your invention, and can assist in your patent application in the process. Having a prototype will not only let you test your invention to see how it performs in the real world, it will help you identify any potential manufacturing or production flaws you may have overlooked.

While a prototype is not required to file a patent, they can be a great way to demonstrate to your peers that you have a product worth investing in. Having a functional prototype can also be a nice touch if you are looking to attract customers and investors.

One issue is that even though an invention is too early to have been submitted in a patent application. with missing details, it may still be considered “ready for patenting” under the one year on-sale bar.  How do you handle this dilemma?  We will discuss how to do this next.

Is it possible to protect a barebone concept as a patent application?

When you have an invention that you are ready to file for a patent, you may be wondering if you need a prototype or proof of concept to make the application.

Many people assume that you need to build a prototype, but this is not always the case. In fact, the patent office will consider an application as long as you provide sufficient details for one skilled in the art to implement the invention.  That is why we recommend that you provide lots of implementation details in the application. A poor disclosure can not provide priority for continuation-in-part applications. An inventor who is afraid of the on-sale ban and files a premature application for patent protection may lose it.

In the United States, a prototype is not required to file a patent application. However, the prototype is a good way to test and demonstrate your invention. It can also help you understand how your idea works in the real world.

So how do you resolve the tension between getting an early patent filing date and having sufficient details?  We recommend that you file two provisional applications.  The first provisional application covers your initial concepts that discuss all considered design options with as much details as known at the time.  You will then build mockups or prototypes to show prospective customers. The second provisional application can cover details of your prototype which may be useful in resolving any technical issues you may have with your design.

While a prototype is not necessarily the only thing that should be on your to-do list, having one is usually the easiest part of the patent application process. If you do choose to build a prototype, do so before you file your patent application. Having a prototype will save you time and money in the long run.

Not only do prototypes save you the time and effort involved in bringing your invention to fruition, but they can also show you the non-obvious things about your invention. For example, a prototype can tell you how well your invention will work in the real world, and if it will actually move any machines in the real world. Additionally, a prototype can show you how other people will use your invention, and how much it costs. This is a very important detail to have when you are considering licensing your patent rights.

A prototype can be a great way to demonstrate to investors and third parties that you have a functional and attractive idea. This is especially important for inventions that are complex and/or require a high degree of engineering, like solar energy technology. Developing a prototype can be a great way to show off your invention to potential clients, and can help you get the funding you need to make it a reality. Investing in a prototype is a good decision, and can be made from a variety of time frames and budgets.

Advantages of a Prototype

A prototype can be useful for several reasons. For instance, it can help you spot issues with your invention or process. You can also use it to get feedback from your customer base. Additionally, it can spur more ideas for your patent application. If you do not have a working model of your product, you may not be able to find the best ways to develop your idea.

Having a prototype can be expensive. However, if you are on a tight budget, you may be able to get a prototype made for a fraction of the cost. Also, if you do not have a prototype, you will have to spend more time and money on additional features.

You should be able to use a prototype to show off the best parts of your invention to your patent attorney. By doing this, you can reduce your chances of having to rework the design later on.

The other reason you may want to build a prototype is for marketing your invention to third parties. This can be a good and inexpensive way to get your product to market. It is also a good indicator of how well your idea fits into the marketplace. Once you know how your product will fit into the world, you will be able to better tailor it to your customers.

Getting a patent is a long and expensive process, so you should take the time to get all your ducks in a row before you try to file a patent application. There are a few things to consider, including whether you have a legal right to patent your invention and if your idea is truly unique. As with most business transactions, you will have to be upfront about your intentions. Lastly, be sure to have a nondisclosure agreement (NDA) in place. Some companies won’t sign such an agreement, so be sure to include one in your agreement.

Having a prototype in your possession is definitely the best way to show off your invention to a prospective buyer. A good NDA with belt-and-suspender patent protection will ensure that an unscrupulous company or investor cannot take advantage of your idea and prototype.

What if you don’t have money to file the patent today?

The US Patent Office recommends that inventors hire a lawyer at the beginning of the process. You could be at greater risk if you do not have legal assistance during the filing process. You will have to hire a lawyer to correct any mistakes in your applications. This will result in you spending more than if a professional was hired. A lawyer can also help you decide whether you should file for a patent worldwide.

That said, if you don’t have the resources to hire a lawyer, you can write a provisional patent applications yourself and then you only have to pay a small filing fee to the Patent Office and you can be patent pending. 

While a provisional application is informal and not examined by the patent office, it is best if your provisional patent application is written as though it is a full non-provisional patent application.  However, learning how to write a full blown patent application can take a long time if you are not familiar with the requirements of the Patent Office.  To accelerate this learning curve, you can use software such as PowerPatent Provisional Builder software to draft your provisional application to speed up the process, and this software is only $99.  In a year’s time, you can convert all intervening provisional applications into a non-provisional application with a lawyer’s help. This approach reduces cost and improves the quality of the non-provisional patent application and gives you the earliest possible priority date for your patented invention. 

Getting a patent is no easy feat, and you should consider seeking professional help if you have a serious invention. Your invention could be the next big thing, and you want to be sure you are on the right track to success. Now go and protect your Unicorn invention!