Prototype, Patent, then Market: A Misguided Concept

Anyone manufacturing their product wants it to be on time, within budget, at the right level of quality and reliability, and in compliance with market regulations, but in terms of safety, they also don’t want it to be copied! There is a certain order to bring a new product to market safely, then, which reduces your risk of your product IP being copied by China copycats who can and will beat you to market if you have an attractive idea.

A customer recently asked us about which order to do things in, so let’s discuss why prototyping, patenting, and then going to market is a misguided concept that could land you in hot water.

Prototype > Patent > Market? A misguided concept.

Someone asked us if they should contact Chinese companies to make a prototype of their idea, and their plan was to patent the product idea afterwards when they had got the confidence to move forward from the market and investor feedback on the prototypes. However, they were worried about the Chinese manufacturer they used to create the prototype ripping off their idea and launching the product themselves instead.

This is a very common fear among people who want to develop a new product in China, as copycats are out there.

The traditional way to proceed

The common misconception about the order to proceed goes as follows:

1. Get a functional prototype made.
2. Show it to potential customers and investors.
3. Decide if a utility patent is needed for the product (because patents are expensive, entrepreneurs and smaller businesses don’t want to risk spending that money on patenting too early).

The problem is, that doing these activities in this order reduces your new product launch’s chances of success, especially for startups and SMEs.

Related: listen to a discussion about when to get a patent in this podcast episode.

What should an SME or hardware startup actually do?

For a hardware startup that is not very well capitalized (excluding anything “deep tech”), patents start to be a good idea when there is clear market traction.

Spending money on patents before market traction makes no sense in most cases as it drains you of funding that would be better used for product development and increasing your speed to market as speed is more powerful than patents. In many markets, building your brand and dominating the market quickly can offer stronger protection than patents.

Also, approaching, say, a Chinese manufacturer early to create prototypes you then show to potential investors opens your IP up to risk. While you are in discussions, they can beat you to market using ‘China speed’ leaving you unable to gain your deserved market share in competition with their, very likely, cheaper product. Copycats often send their products one by one to consumers/users and your patent will probably be useless in such cases. Unfortunately, the patent office doesn’t do refunds…

Here’s what you should do instead:

1. Mock your idea up in creative ways and show it to potential customers – this might be making a mock-up out of card, plasticine, pieces of wood, or even by 3D printing it.
2. Based on your feedback, improve the mock-ups and refine your product idea until you see it gets a strong response from potential customers, and document it.
3. Talk to potential investors, show them the market research you have already done and the results you got. They will be far more likely to be interested in investing if you can show them tangible interest from your chosen niche.
4. Only after that, if the idea shows promise, work on the design (industrial design, early proof of concept…). This can be kept in your own country.
5. Only when needed, and with the right precautions (such as a manufacturing agreement), approach a company in China to put together initial prototypes. All along, keep getting feedback from potential customers. You may prefer to use a contract manufacturer rather than OEMs or ODMs as the risks of them taking ownership of any product IP they work on are lower (read more about the differences between these manufacturers).
6. Skip any “highly visible” marketing (Kickstarter, Indiegogo, YouTubers and other online influencers…) at the start, as that’s the highest source of risk of getting copied. Chinese copycats do check these sources online to gauge if new product ideas are worth copying. Not all sales or pre-sales count as public disclosure, so be strategic about what you disclose and to whom.
7. Look into provisional patent applications if you believe patents can help and register the trademark while you work on gaining market traction, but resist the IP lawyers’ pitch for a full-blown patent for as long as possible.
8. Use Design patents as a tactical tool – Design patents (cheaper and simpler than utility patents) can help block copycats on platforms like Amazon but are less useful against direct-to-consumer drop-shipping.
9. Focus on winning in the marketplace as proceeds from sales are arguably more important than protecting your new product idea with a full patent due to the expense of the latter. Your V1.0 product is a valuable source of market feedback and funding for later, more sophisticated versions. Perhaps these are the versions to patent when you know that you have good market traction.

It’s always better to focus on execution, moving fast and scaling quickly, than investing in expensive patents that only provide a deterrent and certain protections after you have been copied. By getting to market quickly, you make it harder for competitors to catch up and watch them from the rear-view mirror instead. Remember, being copied once you’re already selling is a measure of success.

Defending patents

Even if you’ve invested, say, tens of thousands of dollars into patenting your product, you also need to have the funds to defend that patent by bringing litigation to anyone who copies the product. This could be very costly, so you also need to take that into account. Without the money to pay lawyers to defend the patent, having the patent is actually not very useful except, perhaps, as a form of deterrent.

Read more

The following articles and long guide will help you to further understand the ins and outs of IP protection, prototyping, market feedback, and patents.

• Prototesting: Reap All the Value of Proof of Concept Prototypes
• How to Manufacture a New Product with the Customer Journey in Mind
• Patents For Hardware Products: When Do You Need Them?
• IP Protection in China when Developing Your New Product [Importer’s Guide]

Disclaimer

Here at Sofeast, we are not lawyers. What we wrote above is based only on our understanding of the legal requirements. We do not present this information as a basis for you to make decisions, and we do not accept any liability if you do so. Consider consulting a lawyer before making legal decisions.

*Editor’s note: This post was originally published in July 2023 and was widely updated and republished in March 2025.