Should Provisional Patent Pending Products be on the web?

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Patent Pending Products on the web


Searching on the web for instances of patent pending products for sale without pictorial or detailed narrative descriptions was unsuccessful.  Google Searching for patent pending heat exchangers yields 82,400 results.  A lot of the information on the web is detailed as shown in a few examples in the appendix.

Google searching patent pending oil and gas products yields 7,400,000 results. Large publically traded companies and the tiniest of companies depict their patent pending products on the web.  Veolia has patent pending products on the web.  General Electric publishes videos about their new patent-pending technologies:  Small companies put their patent pending products on the web too.

Adrian Zettell  puts his patent pending product directly on the web.  Adrian Just made a sale to Schlumberger too.  It is simple stuff he has on the web.  Adrian describes the materials in his invention and illustrates the hose clamp assemblies holding it together. He describes well enough that making his product from the pictures and descriptions is not difficult.

Large and small companies put their patent pending products on the web.  A general Google search for patent pending products shows more than six million results.

It is clear that our rights are not enforceable until a patent is issued.  However, we have no assurance that a patent will be issued, and if it is not, any protection is gone.  I read that a provisional patent application is excellent protection from poachers because it is secret, and being secret, a potential competitor does not know the extent of the claims and could be infringing.  Companies with anything to lose (goodwill, money, reputation) are unlikely to steal our patent pending ideas and products.

A review of the online articles about publishing and marketing patent pending products:

“Before outlining some strategic options, I should mention that the magnitude of fear of showing others an invention at this stage is often overblown. In my experience, it is rare that a company will knock off an invention at this stage[1]

Before the patent issues, however, a competitor is always in doubt about how much coverage the issued patent will give the patentee. The competitor must weigh the costs of developing a competing product with the risk that his or her product may directly infringe when the patent issues. In many scenarios, the “patent pending” moniker is more effective as a business tool than the actual issued patent.[2]

When your competitors see the words “Patent Pending” at a trade show, on your new product, on your web site, or in your sales literature, they will naturally wonder about the scope of your patent application. But if that application has not been published its contents are confidential, as long as you maintain them so. Your patent application will not be discoverable for at least eighteen months or more, and even then, prosecution could impact what ultimately may issue. So your competitor’s fear of the unknown may provide you a temporary but substantial advantage in the marketplace. Use it well[3].

Filing a provisional patent application that adequately describes the invention will establish priority and satisfies the need to act swiftly under first to file rules. A well prepared provisional patent application is your best friend in a first to file world.[4]

Assuming you have filed an appropriate provisional patent application you can market the invention without fear of losing patent rights, generating cash to proceed with development or further patent activities.  In other words, the provisional patent application is an interim step along the road to a patent.[5]

All this is not good for the offending company.  By the time the infringement case is over, that company may have to pay triple damages, have to quit selling the product, and lose all its development and marketing costs.

For this reason, you are likely to find that most companies are not likely to rip off your “patent pending” invention if they believe you have a good chance of eventually getting a patent.  These companies will recognize that it is better business to simply buy or license the patent rights from you than steal the idea from you and face the consequences.[6]

As good practice, you should only publicly disclose your invention after you are patent pending. However, it is important to remember that the patent application only “protects” the invention that is disclosed in the patent application. If you change your invention design and that change is not disclosed by the patent application, then that modified invention is not protected. It is possible for you to file another patent application to protect the new design.[7]

In summary – the short answer – go ahead and show it.  If you have any more questions please contact me at elliot AT[8].”

Google searches yielded no attorney blog or article that supports our attorney’s position of not disclosing the invention on the web.  For a bit of gentle fun:

One can make a case against anything. Like making an argument against walking across the street for fear of an accident. The odds of a pedestrian getting hit by a car: 000232[9].  Patent litigation[10]  occurred in about 3000 cases in 2013.  There were 600,000 patent applications in 2013[11].  One-half of one percent file a case.  Only 3.6% of these go to trial.  96% settle[12].  Extrapolating; .00036 of the cases require the full cost of court litigation, a slightly bigger risk than crossing the street.

90% of an invention’s success is marketing it and getting it out.  “[T]he idea is about 10 percent of this exercise; 90 percent of it is the marketing of it, getting it together, getting it out.” (Richard C. Levy, inventor of Furby quoted in Liane Hansen,  All Things Considered (NPR), “Profile: Independent toy inventor Richard C. Levy,” June 18, 2002)

We cannot stop the Chinese from knocking off our invention, but we can keep knockoffs from our shores.  Chinese patent protection is getting more robust[13].   It seems unlikely that the Chinese or another foreign knock off originators become interested in our product until we make a market.  We have international patent protection.  Chinese patent applications are not expensive.  So, perhaps we get one in China in a couple of years?  We have the Chinese law (I think treble damages are in the works) and US law to protect ourselves.

My preference is to use Adam’s approach.  It is simple, inexpensive and it works.  He is getting orders.





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Categories: Sales, Strategy

Cold Calling – The Odds – Industrial Sales

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Cold Calling

Cold Calling, what is it good for?

Cold as Ice - Is life underneath?

Cold as Ice – Is life underneath?

The purpose of a cold call is to make an introduction of the company and machine or product, find out if the product has interest to the Industrial customer, and start a sales conversation. Go from a sales conversation to brochures.  From brochure to visit. From the visit to a close. Cold calling is part of the marketing arsenal.  When used correctly, the economics make sense.

How does cold calling work in real life?

(Caution – Unscientific results based on in-house CRM notes).  The accomplished caller gets to a useful person, 33% of the time.  The good caller gets to a useful person 25% of the time.  Less good sales people get less.  Great sales people get more.  Not a lot of difference between good and accomplished.

Salespeople are good at their job.  If the new product has any relevance at all (80% of the time on good lists) the potential customer asks for more information.  Most of the time 80% the additional information satisfies the customer who may or may not open  up the email with the attachment. (Note – see about an email widget that lets you know when prospect opens or deletes the attachment).

Math update. 600 leads = 200 connected calls.  160 brochures sent. 10% = 16 prospects with an interest somewhere between curiosity and seriousness.    Of the 16 prospects, 4 have interest and set an appointment.  One out of 4 appointments with prospects that take appointments ends with a purchase. Calling 600 people with skilled consistent sales people on a good list means that one sale is made.  One-third of one percent of the calls ends up in closed transactions.

The call is important because it sets the stage for the relationship.

Too pushy and sales orientated, and the caller makes his reputation, no matter how good the information, the person is dismissed from relevance.  Too weak a call and the salesperson is dismissed as rambling and unfocused.  Either end of the extreme is unattractive. The correct tone is focused on the job at hand, delivered as an authentic human being.  Everyone takes this sales person seriously except for the front desk receptionist who has been told to reject any and all sales people.  Ever wonder why these instructions come to the front desk?

The brochure is the calling card.

It reaches beyond the point of contact of the sales person into the company.  Does the brochure explain the entire product?  Is it a teaser?  One page chock full of facts? Is the brochure a sample? The answer, “it depends” is unsatisfying.

If the product is part of the COGS (cost of goods sold) then a sample is frequently the right “brochure” to send.  If the product is a new robot, perhaps a teaser and an invite to the factory is best.  If the product is this year’s version of a commoditized product (electric motor, diesel engine, tools, gears, boilers, heat exchangers, etc.) then a detailed spec sheet and a link to an iges (three-dimensional drawing) file is in order.

Send out too little and the brochure is pitched in the trash or deleted.  Send out too little and the sales person is pitched in trash or deleted for not recognizing what to send.

Making the appointment might happen on the first call, but probably not.  More like six or seven calls.

Remember, each cold call leaves an impression too.  Be sure to be sure before burning through your lists.

PS: For fun, check out Scratch Ticket odds

PPS: Check out the post regarding the CRM we use.



Categories: At Work, Sales

Confidential Agreements/ Non-Disclosure Agreements

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Confidentiality Agreements

Non-Disclosure Agreements or Confidential Disclosure

Confidential Agreements are found in various corners of the internet. You will have to modify the agreements below to suit your needs. Confidentiality agreements come in many flavors. It is important to protect the inventor’s invention. Lawyers say that an open discussion where the people on the phone are brainstorming leads to added inventors who, because the information was not kept confidential from the contributors are now co-inventors with inventor’s rights.  Suppose the call is with the customer’s engineers and the engineer suggests a modification.  The engineer has just become a co-inventor.  If the confidentiality agreement is written properly with words like:

“receives the Confidential Information of INVENTOR, and CLIENT makes improvements to technologies described in the Confidential Information of INVENTOR or makes inventions based on the technologies described in the Confidential Information of INVENTOR, CLIENT agrees to grant and assign, and does hereby grant and assign, to INVENTOR or its nominee, CLIENT’S entire right, title, and interest in and to any such improvements or invention…”

Confidential Agreements Download Section

The University of Utah Publishes two short ones:



Here is another one from


The theory is that NDA’s provide protection.  Some say they do not provide protection.  See article

Some say they do provide protection.

Some have a policy of not signing NDAs.  Angel and VC investors frequently do not sign them.

There are two schools of thought about disclosing information.  One is to disclose as little as possible, even at the cost of a few sales.  The risk of theft is greater than the risk of insufficient sales to sustain the business.  This school is practical with home run inventions.  Otherwise, less than one out of one hundred inventions succeed in the marketplace. The other school is that the risk of not haveing sales trumps the fear of piracy and that details that could be risky are shared to increase the odds of selling the product.

Nearly all inventions fall into the second category if one considers that over 99% of them fail.

99.8% fail.  Only 3,000 patents out of 1.5 million patents are commercially viable. “In truth, odds are stacked astronomically against inventors, and no marketing outfit can change them. ‘There are around 1.5 million patents in effect and in force in this country, and of those, maybe 3,000 are commercially viable,’ [Richard Maulsby, director of the Office of Public Affairs for the U.S. Patent & Trademark Office], “Avoiding the Inventor’s Lament,” Business Week, November 10, 2005)  excerpted from

Categories: Sales, Tools


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Sales – Without them, nothing else works.  Be sure that the runway is long enough for take off. Get out of the building.  Talk to customers. Know your value proposition.

Many drill the idea that the voice of the customer, (VOC) is important.  The drillers are correct. Until actual customers are interviewed and seen, it is well nigh impossible to pin down the marketing, the product launch or make sales.

If a founder (or inventor) is calling, expect one in six calls results in an interview.  If a team member is calling expect one in twenty calls to set an appointment for the customer to speak to the founder.  Of these calls expect three out of four to consummate.

Make the calls.  A good invention is an awesome idea to present and the Customers quickly get engaged.

Categories: Sales