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[b65366837868r]

I searched the site and found this question: How do I go about licensing an invention without a patent? 

Part of the moderator’s answer was:
“The question you must answer for yourself is, what do I have to offer the "licensee?"  Unless the invention requires some proprietary know how, there's often not much you can offer in the licensing context.”

My question is similar, however, thanks to this prior post and the moderator’s comment, I have revised the question. 

I have the solution to a problem that affects many millions of men in the world.  My variation on an existing product offers this solution—for the sake of argument, let’s just say that it cannot be patented.  In view of the moderator’s statement in the prior post, I don’t think my solution has much to offer as far as “licensing context” is concern—no proprietary know-how—however, it's a "solution" that does have much to offer. 

It offers a massive market; it must be replaced regularly; its parent has a time-tested important role in human society that will be around for at least another hundred years or more, yet does not solve the problem my solution addresses; it’s easy to manufacture with existing technology that’s already in place; it’s so simple and so effective that it will be all over the world as soon as it’s out there; and it’s worth millions upon millions of dollars to whomever gets it because it solves a serious problem for millions upon millions of men worldwide. 

Having said all that, I suppose my question is: “If I have something that offers all the above and I can’t patent it, or it’s not something that lends itself to licensing, anyone got any ideas on how I can offer it to someone and get a percentage of the sales without being ripped off?  Just thought I’d post this before I go to an attorney.

Thanks.

[MYK]

Why isn't it patentable?

As far as protecting whatever it is that you've got, I can think of several dozen different companies offhand that have nothing particularly unique, yet "protect" what they do via strong branding, massive advertising, and franchising.  You've probably eaten at a few of them recently.  There's nothing to prevent others from buying ground beef, buns, condiments, garnishes, and soda-fountain syrup and setting up their own burger joint, but that didn't prevent Wendy's from growing into a national chain, even though McDonald's had been around for decades prior to Dave Thomas opening his first store.

Similar companies exist in other markets, such as Kinko's (now Fedex Kinko's) for "office solutions".  (I'm fairly sure that the Cambridge Kinko's I got my copying done at 29 years ago was the first one, but I may be mistaken.)

The third possibility (other than patenting and brand-building) is the use of trade secrets.  I'd be hard-pressed to think of anything that could be maintained as a trade secret that could not instead be patented, though.

-----------
ETA:

In rereading, it sounds like you're discussing a physical product, not just a "hair weave" or combover or other hairdressing gimmick that is done as a service.  If your product differs from "its parent" in even a minor way, that improvement might be patentable (or perhaps kept as a trade secret, if it is something that is not discoverable by dissecting the product).  Small efficiencies or improvements can (sometimes) make a real difference in the marketplace.  The fact that wigs are well-known doesn't make an improvement in their manufacture or use unpatentable, it only means that the patent only applies to the improvement.

[doug vagedes]

MYK is correct that "strong branding and massive marketing..." many times is as or more important than the IP itself.  I tell people all the time, It's all about the marketing!!!

If it's that great of an idea, find someone who can make it a household name.  You have one shot.

[MYK]

Appreciated, Doug -- especially since you're the expert in that field.

I've learned the hard way that coming up with a solution is simple compared to getting it manufactured.

And getting something manufactured is simple compared to getting people to notice it and buy it.

[b65366837868r]

Thank you folks for all your insightful input.

Yes, it's a product---apparel---and it may be patentable, however, in relation to the question, I chose to assume the worse case scenario---I’d have to pitch the solution for licensing or whatever without it being protected.  I’ll certainly have to see an attorney to get a better idea of whether it is in fact patentable.  If it is, good; if not, my question.

As to the power of marketing and branding, the reason I asked the initial question is because I’m not in a position to take the marketing and branding route.  As an attorney once said: “I don’t pull my own teeth, and my dentist doesn’t file his own patents.

I’m blessed in a sense, because one side of my brain is an artist, and one side is an industrial engineer that looks for problems to solve.  Some might call that a curse.  Regardless, I simply didn’t get the entrepreneurial gene when God issued the DNA.  Marketing, branding, building a business, manufacture and distribution of goods, is simply not my forte. 

I’m a fiction writer.  I’m about to release another novel in August, I’m presently working on a major non-fiction book---that offers the solution to another serious problem that millions of people in the world face---that I hope to have in rough draft by the end of 2010, and I have another novel planned for 2011.  I’m also involved in a long-term project as a writer/editor/site developer and manager and idea person with my business partner’s spiritual and personal consulting business. 

Considering my personality, talents, and the 24/7 limitation, licensing or some similar method may be the most sensible route to take for the solution mentioned in this forum, while I continue to do what I do best.  Hence, the original problem/question: Assuming a non-patentable solution, how to bring it to the table and be paid instead of ripped off. 

Thank you folks again for all your input.

[Robert K S]

Assuming a non-patentable solution, how to bring it to the table and be paid instead of ripped off.

To answer this question, you need to be asking the question your buyer/licensee will be asking: Once I pay you, b65366837868r, for your "solution", and start marketing/selling it, if it's such a good solution, what's going to stop all my bigger, better-positioned competitors from ripping it off, underselling me, and putting me out of business?  They can source the raw materials for cheaper and they already have the supply chains in place.  Once the information becomes public, why won't they be able to do it better?

The typical and best answer to this question is, "Because I've patented it, and my patent claims are so broad and strong that no one will ever defeat the patent by designing around it or invalidating it."

I'm not aware of any other answers to the question.

[b65366837868r]

While trying to post this, I kept getting a message that I wasn't allowed to post in this forum???
Oh well, I'm trying it again, so please don't yell at me if it took the first time.

Thanks, Robert.

I appreciate your obvious command of the patent/license playing field and your knowledge of the game.

Yes, this is a tricky situation for sure.
Although I'm working two solutions to big problems that are "protectable," I have two more that are not.
Alas, I seem to come up with the ones that aren't more often than the ones that are.

I spoke with two patent attorneys today who don't think the solution is patentable---a serious problem for anyone who might go with this. However, under a percentage arrangement, I wouldn't get paid unless the product sold, so no loss on the part of the licensee there.

And if the licensee or whomever is big enough, say Klein, Hilfiger, Hanes, or Van Heusen---Heusen owns Klein and Hilfiger---or any of several other billion-dollar giants and they go with it, little chance that a lack of sales on a single product will break such mainstays who already have the necessary resources. Anyone who picked up the idea would be hard pressed to "do it better" than any of them. Of course, as you say, when everyone gets in on it, if it's good, everyone makes money, but no one makes any big money.

Since I apparently don't have a patentable solution---according to the two patent attorneys so far---it looks like the "typical and best answer" is out of my reach. Maybe on the next one.

As for other answers, I think they're out there, so I'll just have to keep working the problem, since I believe in possibilities instead of limitations.

Many thanks again for your input.
Folks like you and the other wizards on this forum are a godsend to the wee little folks like myself.

[doug vagedes]

If it's that great of an idea and there is no patent protection, adopt a strategy of developing the WOW idea, placing all resources into the marketing plan, especially building the brand, blowing it out there and establishing many customers and selling the he** out of it.  Only until sales are doing well will competitors take notice.  If you establish a great brand name and solid customers, you may lose some, but it will still generate sales.  Let them be a copier, you be a leader.

As a leader, by this time you should have been working on the next WOW idea, hopefully in the same line of products, or the same channel of customers   If you become known as a company that introduces WOW ideas, your customers will be excited when you walk in their door to see what new cool thing you have.  When a competitor comes in with a knockoff, I guarantee you'll start to build loyalty and they won't jump ship so easily.

And if they do come in with a cheaper price, never ever try and compete on price.  If that's all you have to compete with, you're done.  Be innovative and introduce WOW products.  That's a strength!

If you need help, let me know.

[Yak]

I spoke with two patent attorneys today who don't think the solution is patentable---a serious problem for anyone who might go with this. However, under a percentage arrangement, I wouldn't get paid unless the product sold, so no loss on the part of the licensee there.

And if the licensee or whomever is big enough, say Klein, Hilfiger, Hanes, or Van Heusen---Heusen owns Klein and Hilfiger---or any of several other billion-dollar giants and they go with it, little chance that a lack of sales on a single product will break such mainstays who already have the necessary resources. Anyone who picked up the idea would be hard pressed to "do it better" than any of them. Of course, as you say, when everyone gets in on it, if it's good, everyone makes money, but no one makes any big money.

b65366837868r, I think you may be underestimating the risk and cost of bringing a product to market, even one you may feel is simple and cheap to make.  You may feel that a licensing company has no risk of loss or actual loss if there are no sales because you see no loss or receive no royalties due to no sales.  However, the company is absorbing all the risk and cost of getting the product on the shelves. 

[doug vagedes]

YAK, you are absolutely correct.

[fb]

Old post, current situation:

you need to be asking the question your buyer/licensee will be asking: Once I pay you for your "solution" and start marketing/selling it, if it's such a good solution, what's going to stop all my bigger, better-positioned competitors from ripping it off, underselling me, and putting me out of business?  They can source the raw materials for cheaper and they already have the supply chains in place.  Once the information becomes public, why won't they be able to do it better? The typical and best answer to this question is, "Because I've patented it, and my patent claims are so broad and strong that no one will ever defeat the patent by designing around it or invalidating it.

How about offering lead time?

If it's that great of an idea and there is no patent protection, adopt a strategy of developing the WOW idea, placing all resources into the marketing plan, especially building the brand, blowing it out there and establishing many customers and selling the he** out of it.

My situation's interest area is in foreign territories. Yes we are filing for a U.S. patent, and may then file PCT, and we will be marketing the product in the U.S. ourself. But the product has a strong foreign pull, and is very easily made by the people who make these types of things there. So once the U.S. application is done, I will try for foreign licensing and of course try to get the licensee to pay for filing. But there are a lot of countries, and those I can't convince to pay for filing are going to end up making the product anyway, so can my WOW factor be my offer of advance instruction on making the product?