Are There Simple and Cheap Alternatives To Patenting?
The Two Most Common Mistakes that Can Make You Lose Your Rights to an Idea or Invention.
The patent process can be quite costly. The fees from the Patent Office are only the beginning, and quality representation from an experienced patent attorney will run into the thousands. So wouldn't it be great if there was a way to save thousands on patenting? Well of course it would be. The important question is: how might your attempts to save money in the short term actually end up costing you heavily further down the road?
Let's face it - when it comes to a costly or time consuming project, any short cuts that save time or money are highly desirable. We all like short cuts, and this is not a bad thing. Some of the best inventions arose out of this
desire to make something simpler, easier, cheaper, or more convenient.
Even though this is true, when it comes to securing legal rights to an invention, there are no short cuts worth taking. That is of course, if what you have is worth protecting. If something is not worth patenting, trying to protect it (even by taking a short cut) makes no sense.
I've heard many crazy ideas from inventors over the past 15 years, about how to circumvent, or avoid the patent process. Every one of these people are sure they have found a loophole. It is a lot like the people who believe that there is some secret loophole that they can use to avoid paying income taxes. I often wonder about these people -- haven't they heard the saying about "death and taxes"?
In any case, this article will focus on the two most common short cuts people try to take in order to circumvent the patent process. While these short cuts clearly cost people millions in wasted money and lost ideas, thousands of people still believe they work and try them every year!
The "Poor Man's Patent"
I don't know the origin of the urban legend of the so-called "poor man's patent," but it is a myth that is about as durable as the cockroach. No matter how many times it is dispelled, or how many authoritative attempts are made to stamp it out, it lives on. People want to believe it, and so this myth continues to cost thousands of inventors the rights to their inventions. I often ask myself, why do people continue to believe it to be true? Perhaps it is their hope that it could actually be that easy (and cheap) to protect an idea.
So, like many have before me, I will explain the myth
. And please, DON'T TRY THIS AT HOME:
Here it is: you describe your idea, put it in an envelope, and send it to yourself by certified mail. The thought is, the postmark will serve as proof of the date that the idea was invented. Right? Wrong.
The truth is, a postmarked letter an inventor mailed to himself/herself, has never been accepted as proof of inventorship. People often ask me, why not? Some people say it’s no good because the envelope could be steamed open and resealed, making it unreliable as proof of invention.
I think the answer is much simpler - the government has gone to the trouble of setting up a Patent System, which includes the United States Patent Office, a network of patent attorneys, and the court system. By doing so, they have effectively declared, that this system is THE way to protect an idea. When a person tries to protect an invention by mailing it to themselves, they are effectively trying to get around the system. Why would the courts ever encourage people to try to get around the system?
But, whatever the reasoning is, a sealed envelope will not protect you. If you rely on it, and delay starting the patent process because of a false sense of security - depending on the circumstances - you can lose the rights to protect your invention entirely.
Misused Provisional Patent Applications
Before you jump out of your seat, I am not going to say that all provisional patent applications are bad! In fact, I often prepare and file provisional patent applications for my clients. The problem is, since the provisional patent application procedure was created by an act of Congress in 1996, people have misunderstood and misused the process (literally throwing away their rights) because of a few common misconceptions.
The original idea behind provisional applications was to give inventors an option to preserve their priority, before filing a full utility application. When a provisional application is filed with the United States Patent Office (USPTO), it gives the inventor priority rights to the invention for a period of one year. The USPTO will not review the provisional application. But if the inventor files a utility patent application within a year, they will maintain priority from the original filing date of the provisional.
Sounds great, right? Just throw together a description, file it now as a provisional application, and have a year to bring it to a skilled patent attorney to do it the right way. Well, not exactly! Even though no one will “reject” your description, because the provisional application is not going to be examined, there are two problems with this approach.
1. The priority you get is only as good as your provisional application is well written.
Since effective patent writing requires a great deal of experience and skill, it is easy to file an application that does not fully connect the dots and adequately portray your invention. It’s possible that you will be vulnerable even if someone else files AFTER you with their own well written patent application.
2. When creating the provisional patent application procedure, Congress specifically maintained many of the formal requirements of a utility patent application
. Most notably all provisional applications must still meet the "enablement" requirement under 35 U.S.C. § 112. In English, what this means is that it is easy to draft a provisional application that doesn't have what it takes to really establish priority for you, and because your provisional will not examined, you won't find out until it is too late
. That is, even though the provisional application will not be examined by the Patent Office now, you better believe it will be scrutinized by teams of attorneys and by the courts if there is ever big money at stake. Your provisional patent application can be the deciding factor in a dispute over whether someone else owns your idea!
All this being said, a provisional application is most likely to let you down most when you try to write and file it yourself (or even if you use some cheap service to throw one together).
In my experience, the reason people frequently do such a poor job of writing provisional patent applications is simply that they know it is not going to be examined. It kind of feels like no one is checking, so it is o.k. to writeup and file whatever. The fact that the application is never examined also has another important implication for the inventor.
Many companies (frequently non-lawyers) try to sell their 'provisional patent preparation' services, with little fear of customer dissatisfaction. Because there is no chance the application will be rejected when filed, there is no need to file a well written provisional patent. Few consumers who utilize these services will ever know they have been ripped off until it is too late.
From my perspective, spending anything at all to have one of these “cheap” provisional applications prepared is a waste of money. It is not going to help you. In fact, the biggest problem is that having this provisional patent filed gives individuals a false sense of security. As stated before - you just won't know if it's good enough, until it is too late to do anything about it.
Everyday my staff and I talk to people who are boldly out there in the world, openly showing people their invention,s while believing they are safe to do so because they have filed a provisional. When I take a look at many of these provisionals, however, I become scared for them!
On the other hand, a well written provisional can be a very effective tool in establishing protection for the idea, at a generally lower cost, while leaving room for further development of the idea. There are different philosophies about how much is enough when writing a provisional.
My approach is - when I write a provisional, I give it the same care and thought as if I were writing a utility patent application. The key to writing any good patent application is an ability to pay critical attention to the essential core elements, and make effective distinctions about them using language that is simultaneously broad and precise. This applies equally to provisional and utility patent applications. In the provisional, however, it is often possible to save money by sticking to the essentials, while perhaps eliminating some of the overkill that is customary and even expected in utility applications.
So back to the original question: is there a way to save thousands on patenting?
The answer is yes - you can do so by having a patent evaluation conducted. Paying to have proper research performed and getting the right advice in the beginning, can save you thousands that would have been spent attempting to patent something that could never be patented. Spending some money (and time) to save larger sums of money (and time) is the only effective short cut I know of.