Protection Without A Patent

Jake Werkmeister Patent and Trademark Thoughts, Patent, Trademark, Copyright Leave a Comment


Clients often ask how they’re protected in showing us their invention idea before they get a patent. This is a very reasonable question, and there is a ton of misinformation on the topic. First and foremost is the notion that you can receive a patent without having to show anyone anything about your idea. This is simply not true. The patent office does not hand out patents like serving tickets at the deli. There is a rather lengthy litigation process involved with receiving a patent, and even the USPTO highly recommends that you have a licensed patent attorney/representative file the patent for you. So naturally, your patent attorney will have to understand what your idea is before they go about filing it for you.

Now that we’ve established that you have to show your idea to a licensed professional, what’s to protect your idea from the said professional? There is a long standing myth that you can simply mail the idea to yourself in order to obtain a “poor man’s patent”. The unfortunate thing about the “poor man’s patent” is that it offers absolutely no legal protection whatsoever. Worst yet is that many inventors think that this myth is fact. We are a first to file country, meaning that the first inventor to file a patent on an invention will receive the rights to that invention. Mailing the idea to yourself is not part of the patent process, nor will it hold up in any court. If one attempts to obtain royalties with a “poor man’s patent”, they are going to end up a poor man indeed.

At this point, things are looking rather bleak, as simple protection for an inventor seems non-existent. Luckily, there is one legally binding contract that will protect inventors as they reveal their ideas to those who can help them obtain a patent. A non-disclosure agreement (NDA), also known as a confidentiality agreement (CA), confidential disclosure agreement (CDA), proprietary information agreement (PIA), or secrecy agreement (SA), is a legal contract between at least two parties that outlines confidential material, knowledge, or information that the parties wish to share with one another for certain purposes, but wish to restrict access to or by third parties. It is a contract through which the parties agree not to disclose information covered by the agreement.

We here at For Sale By Inventor have our NDA posted as part of our Record of Invention form. This particular NDA is known as a unilateral non-disclosure agreement. A unilateral NDA is when one party submits information of a confidential nature over to another party. The contract is binding, so even if you choose not to use our services, we are unable to disclose any information about your idea to any third party.

Now that you know that your idea is safe with the NDA, now’s the time to make sure that you are properly protected with a patent! Get in touch with us today, and we’ll show you how to begin.

Jake WerkmeisterProtection Without A Patent

Legal Implications of Doing Business in China

Aaron Cramer Patent and Trademark Thoughts Leave a Comment

ChinaAs many nascent entrepreneurs know – ideas and passion are usually in great supply while working capital struggles to keep pace. As such, many business men and women looking to place their product in the hands of a paying consumer look for intelligent methods to cut the costs of production thereby off-setting his or her limited capital resources. One such method, which has become part of almost every conversation related to manufacturing, is to have your product made in China.

Anecdotally and often demonstrably, China offers an affordable and efficient alternative to presumptively more expensive locals of production – depending of course on what is being manufactured and the quantity of the same. Assuming all things being equal, China is tough to beat in affordability. However, all things are not equal and therefore merit some consideration.

Firstly, a US patent has little bearing in China absent an international patent or a PCT (Patent Cooperative Treaty) patent. As a consequence, if you are concerned about protecting your intellectual property rights but haven’t the inclination or resources for obtaining Chinese patent protection then your intended Chinese manufacturing partner must be reputable and agree to be bound by applicable and negotiated non-disclosure papers (at a minimum). You certainly do not need Chinese patent protection to manufacture a product in China, but you likely should obtain some contractual assurances regarding privacy and product quality.

Secondly, in view of the first point and regardless of intellectual property protection concerns, a major hurdle for obtaining contractually enforceable rights in China is that of language. Unless you speak Mandarin or another variation of the Chinese languages, you are going to need a partner who can mediate and translate a business agreement. Finding such a partner who is both affordable and reputable may prove almost as daunting a task as learning the language yourself.

Lastly, given the foregoing it may not be a bad idea to investigate having your product produced locally. While there may be additional costs associated with local manufacturing, (which is not always the case), there are likely many benefits; namely, if your locality is the United States then your patent rights are enforceable, you speak the language and you can more easily visit the manufacturing facility should you so desire. In short, manufacturing in China is an often glib suggestion to cut costs and increase profits but the reality is more complicated and usually entails costs that aren’t usually itemized or added to the basic cost per widget.

The above is merely the briefest of summaries on this subject. If interested, the reader is encouraged to independently research this subject further. In the interests of fair attribution, in writing this article, the author did so himself relying upon a little personal information while largely leaning upon the infinitely more informed individuals whose articles are available at: and

Aaron CramerLegal Implications of Doing Business in China

How to Get Your Invention Made and Sold in America

Neil E. Montgomery Invention Marketing, Invention News Leave a Comment


Made in USA

We’ve been contacted by many inventors who have decided to take the plunge and start making and selling their inventions directly. After the decision is made to get started, the next step is figuring out if the product should be made in America or overseas somewhere?

There are advantages and disadvantages with using a domestic supplier just as there are advantages and disadvantages with going overseas. It depends on many factors including what the product is, how big is the order and what price point you want to hit in the marketplace. You’ll often hear that it is less expensive to use an overseas manufacturer. That may be true in many cases but not always. You have to add in the cost to ship the products and get them to your warehouse. If you are dealing with large items or a very small order, the shipping cost could be more expensive than producing the product locally.

Many inventors insist on having the product “Made in America” because they want to keep jobs from being outsourced overseas. That is very noble and we applaud their patriotism. Unfortunately, it can be a major uphill battle for some products. If the cost to produce a product here exceeds the price people are willing to pay for that product, producing it locally will not benefit America in any way. On the flipside, if you could produce that same product in China, for example, and hit a price point that consumers are willing to spend on that product, then making it China can benefit America and even your local community.

A viable, selling product helps create jobs in America regardless of where it is originally made. As you look through the supply chain, American jobs are needed to help get your product in the hands of a consumer. The potential jobs are endless if you consider everybody that would be involved with getting your product retail ready. To name a few, there are: truck drivers, warehouse workers, web designers, graphic designers, salespeople, etc., and don’t forget tax revenues.

We don’t advocate exclusively looking overseas or domestically. We recommend looking at all of your options before making a final decision. The best choice may very well be in your hometown if you’re lucky.

For those willing to take on the risk, we’ve developed relationships with manufacturers both locally and overseas. If anybody is interested in making and selling their invention themselves, please let us know and we’ll be happy to assist you.

Neil E. MontgomeryHow to Get Your Invention Made and Sold in America

April 15th

Robert E. Montgomery Patent and Trademark Thoughts Leave a Comment

taxdayApril 15th, also known affectionately as, Tax Day has come and gone for another year. I hope the numbers were kind to you. As Americans, we pay our fair share of taxes based upon our income less whatever deductions we’re entitled to.

Income as reported on our tax forms is important to small-entity inventors. The amount of taxable income makes a significant difference in the amount of patent office fees. The critical threshold is approximately $150,000.00 of income from the previous calendar year. All small-entity inventors (individuals, small groups and businesses up to 500 employees) receive a 50% reduction in Patent Office fees, while small-entity inventors with income under the $150K mark are considered “Micro-entity Inventors” and are thus entitled to a 75% discount in fees. This is new as of March 16, 2013.

Although $150,000.00 is a quick income test, the actual formula is: three times the national median household income. The $150K number includes the combined income of all inventors and investors. That means that two co-inventors must add their income together. It also means that an inventor and all investors must add everyone’s income together for qualification purposes. Most of our clients do qualify for Micro-entity status.

It is important to keep in mind that the fee classification test must be conducted each time the Patent Office charges a fee. It is possible for an inventor to have micro-entity status at filing only to have their income rise at patent issuance to small-entity status.

While on the subject of taxes, it is worth remembering that the Patent Office receives no tax dollars. None – zero – zilch. The Patent Office survives on the fees they charge all of us. Every year, usually in the last quarter of the year, the Patent Office will adjust fees as their operational needs forecast. Regardless of the time of the year, fees can and have been changed upwards and downwards with little notice.

Since the new patent laws went into effect in March 2013, the Patent Office has been able to keep and use of the all of the fees they collect without Congress using any of the money for other non-patent related purposes. Now that the USPTO can keep what they receive, fees have been reduced and the Micro-entity classification introduced. For just one example, the Issuance Fee for a Utility Patent went from $890.00 for a Small-entity inventor to $480.00 or to $240.00 for a Micro-entity. That is real savings to inventors.

Robert E. MontgomeryApril 15th

Pet Rock Inventor Dies

Robert E. Montgomery Invention News Leave a Comment

Vintage Pet Rock

Vintage Pet Rock

On March 23, 2015, Gary Dahl, the inventor of the Pet Rock, passed away at age 78. Mr. Dahl never received a patent but was able to federally Trademark the “Pet Rock” name.

It was in 1975, during an economic recession and 9% unemployment, that Dahl created the first fad product to rival the 1950’s Hula Hoop craze. The inventor was working in Northern California as a freelance copyrighter barely making ends meet at the time. The idea of having a “pet” that required no walking, feeding or cleaning up after came to life while having drinks with friends.

Having a rock for a “pet” was perfect for the time. It was the must-have gift for Christmas 1975. The fad burned fast and hot and then was over in less than a year, but what a year it was. 1.5 million Mexican river rocks bought by Inventor Dahl for a penny a piece were sold nestled in a cardboard box for $3.95 retail. $3.95 during the 1975 recession would be worth $29.72 in 2015. Sounds like pretty good return on investment. Also packaged in the cardboard box were a set of instructions on how to care for the new “pet.”

The mid-70’s Pet Rock fad is a perfect example of how impossible it is for anyone to predict the future success or failure of any new product. Getting a product onto the market and selling is an inexact science.

Robert E. MontgomeryPet Rock Inventor Dies

I Suspect a Patent Infringement. What Now?

Aaron Cramer Patent and Trademark Thoughts Leave a Comment

We’ve been getting a few requests lately for additional information about how our client’s should best proceed in a case of suspected patent infringement.  While each case is unique here are some general thoughts:


  1. Has my idea been stolen? Sometimes a client will find his or her utility or design patented or patent pending product available for sale (online on TV or both).  While this is certainly disconcerting, this does not mean somebody is profiting from your stolen your idea.  In all likelihood, the person selling the product similar to your invention is unaware your patent exists and/or has invented the same product contemporaneously with your invention.  This is almost certainly the case if your patent is still pending.  Pending patent information is maintained in secret by the USPTO so it is highly unlikely any competitor is aware of your particular pending patent.


  1. Why wasn’t this invention discovered by either Montgomery IP Associates, LLC or the USPTO during the prosecution of my patent application? Assuming that the invention at issue pre-dates your invention (which is not always the case) it is simply impossible to review every single patent or product for sale to ensure the uniqueness of your invention.  We do our very best as does the USPTO but no patent search can be 100% in scope.


  1. I’m confident the product I’ve found online infringes on my invention.  What do I do now? Questions of infringement are questions of fact and sometimes require the matter to be resolved in court – but this is not always the case.  Since we are patent prosecutors we do not participate in patent enforcement/infringement law.  Therefore, we generally recommend reaching out to the alleged offending company and discussing their product and whether they would like to work together via a licensing agreement.  This is usually the ideal solution as it costs the least and may prove mutually beneficial.  If you do not wish to proceed in this manner we recommend finding an infringement attorney in your area and schedule a time to consult with him or her.


While the above is merely a brief examination of some infringement issues it should serve as a helpful primer and alleviate some initial fears you may encounter after seeing your product for sale by someone other than you.  It might also be important to remember that there is a lot of room on American store shelves for competing products – most of which do the same thing and some of which are patented – so just because you have competition doesn’t mean you’ve been infringed against or that there is no longer a market for your product.

Aaron CramerI Suspect a Patent Infringement. What Now?

Somebody Stole My Invention… Now What?

Neil E. Montgomery Patent and Trademark Thoughts Leave a Comment


A couple of years ago I was heading to the PGA Show in Orlando, FL to meet with two different companies that were interested in licensing my invention and distributing it through major retail chains.

If you’ve never been to a national industry tradeshow before, it can be very overwhelming. I went a day early to figure out where everything was so I wasn’t rushing around before my meetings the following day. As I was wrapping up my day, I walked through the booth of one of the largest brands in the golf industry when laying on the floor right before my eyes was my exact invention.

Everything was the same… the size, the packaging, the cost and even the name was my original name for the product. How was this possible? I was convinced that somebody sold me out and gave my invention away. The product was invented in my basement and only close friends and family had ever seen it live.

The meetings the next day were a disaster as you would expect. The companies were no longer interested. I was furious. I lost all the time and money I spent on my invention. Even worse, I lost my invention and now a big corporation is going to get rich off of it. I was not about to take this lying down.

The first thing I did when I got back was had a Cease & Desist letter sent to the company. Well, a couple of days later the head of Marketing called from their company and read me the riot act. The Cease & Desist definitely got their attention and they were not happy in the least.

A couple of days later I received a voice message from their Intellectual Property counsel. I looked up the person and saw that he and his firm represent many big corporations and often appear on the Today Show for legal advice. I realized that I was a bit out of my league and reluctantly made the call back. He informed me that it did appear that I beat them with my patent filings and that I had priority rights.

He said that the company will sell through their inventory with my approval and they will not produce any additional units. So, I got what I wanted right? They stopped promoting and selling the invention.

Or… did I really get what I wanted? Would it have made more sense to contact them politely and work together on promoting the product? After all, they already started production so they obviously liked the idea. I had patent rights so it probably would have been easy to coordinate a licensing deal with them. Instead, I forced them out of the market which took me several years before I ever started selling any real volume.

In hindsight, I should have approached them much more amicably and left the attorneys out of the equation. My advice to others is to consider this experience if you see a similar product to yours and contact the owners directly. There is a high probability that they are unaware of your patent and would choose to work out a fair licensing deal with you.

Neil E. MontgomerySomebody Stole My Invention… Now What?

Why Do I Have To Send In A Picture?

Jake Werkmeister Inventor Education Leave a Comment

Picture and Camera

Picture and Camera

“Why do I have to send in a picture?”  As a product manager for For Sale By Inventor, I am asked this question on a daily basis by new inventors who are looking to protect their ideas.  It’s a fair question to be asked, and there are two primary reasons why a picture is useful in your Record of Invention form.

Firstly, a picture is worth a thousand words, and gives us the necessary information we need in order to determine IF a patent even applies to your idea as well as what type would be appropriate for your invention.  Furthermore, the picture allows us to verify that we understand your written description so that we have a better idea of what your idea is and how it works.  There is no such thing as a “cookie cutter patent”, so the more we know about your idea, the quicker we’ll be able to help you protect your idea.

Secondly, there are approximately 320 million people who currently live in the United States alone.  Meaning that there are about 320 million individual minds that have the potential to problem solve and invent.  Since March 16, 2013 the US has been using a “first to file” patent system.  As the name suggests, this system rewards a patent to the first inventor to file.  With hundreds of millions of people currently living in this country alone, plus the other 7 billion individuals who are also eligible for a US Patent, it’s inevitable that at least two of these people will stumble upon the same invention idea.  We’ve actually seen cases in which two inventors spread out in different parts of the country have submitted two very similar ideas within minutes of each other.

So how does this relate to a picture of your invention?  Simple.  If we went by descriptions alone, the aforementioned inventors had the same idea!  Meaning that the first inventor who submitted the idea over to us would receive the patent if they so chose to continue with the filing process.  However, upon receiving pictures of each idea, we were able to see that there were substantial differences between each invention which would allow both to receive a patent.  That’s fantastic news for the second inventor!

Now you’re probably asking yourself, “what good is the patent to each inventor if such a similar product may also receive a patent?”.  Well, the patent assures that the particular design of an invention is not infringed upon.  There are plenty of real world examples in which similar inventions have their own place in the free market.  A very good example would be the sleeved blanket.  You are probably familiar with The Snuggie, but may never heard of Snuggler, Doojo, Toasty Wrap, and Slanket.  Each of these is an alteration of the same idea with significant differences in design and material.  Each one is sold through different means, and each has been highly successful in it’s own market.  Most importantly, each is a unique design which has been protected so that nobody can just take the exact specifications and start selling their own version of the invention.

Now that we know the importance of the picture, you’re probably asking what type of picture you should send.  Well, if you have a prototype, a good photograph would be just fine.  If you haven’t built a working model yet, just sketch the idea out by hand.  A rough drawing that shows the basics of the invention’s design and function will be all that we will need in order to evaluate your idea.  So now that you have this knowledge, what are you waiting for?  It’s time to make your Record Of Invention form picture perfect!

Jake WerkmeisterWhy Do I Have To Send In A Picture?

Why Choose For Sale By Inventor?

Neil E. Montgomery Inventor Education 2 Comments

Everything you need to patent, develop and sell your invention under 1 roof.

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Neil E. MontgomeryWhy Choose For Sale By Inventor?

I Invented This Because…

Neil E. Montgomery Invention Ideas, Invention Marketing 2 Comments

Thomas Edison and Light Bulb

Thomas Edison and the Light Bulb

The reason we started this business is because we wanted to give inventors the best chance at seeing their dreams come to life. In 2015, we are asking each of you to think of why you came up with your invention. Maybe it was because you wanted to create a different life for you or your family or because you wanted to make the world better or safer.

We want to showcase you and your invention more moving forward. With this in mind, we are asking everyone to send in a picture with your invention, if possible, so we can include you on the website. There will be a new section – Real Inventors, Real Inventions – where you will be showcased. Try to take the best high resolution photo and we’ll get it up on the website to give your invention more exposure.

We’ll show you and your invention and why you invented your product to tell your story. At the heart of every big organization is people, if we can touch just one of them with your story – that might mean all the difference for your product.

Neil E. MontgomeryI Invented This Because…