The United States is a first to file country when it comes to patents. What does this mean for you and your invention? It means you need to give careful and calculated consideration to the timing of your filing for a patent.
There is a delicate balance to timing your patent application. The best thing to do is to consult with an experienced patent attorney. They can help guide you through the process and advise as to when the perfect time to file is.
What First to File Means
Back in 2011, the America Invents Act outlined that the inventor to file for a patent first is the one who is awarded patent protection. Now, what this does not mean is that you can learn of someone else’s invention and then attempt to undermine them by filing for their patent first.
You need to be able to show that you are the inventor and owner. If you cannot prove this, you need to be able to show that you have contracted with the original inventor for ownership.
When You Cannot File
You may be tempted to file as soon as possible due to the “first to file” rule. However, you cannot file a patent for every invention idea you conceive. This is too early.
You may also be barred from filing if you wait too long. If you decide to sell your invention or allow public use, then you have a one year deadline to file. Look at the first date of an offer to sell or the first public disclosure date. When 365 days have passed, you are no longer able to file for a patent.
If you have already sold or allowed your patent to go public, you need to speak with a patent attorney as soon as possible. They may be able to file a provisional patent to reserve your rights. Then they will help you with a complete non-provisional patent application.
When You Can File
You don’t have to build or implement your invention to file for a patent. You do need to be able to describe your invention with enough detail that someone with ordinary skill could create your invention without the need for “undue experimentation”.
If you aren’t confident that your invention can be implemented using current technology, then it doesn’t meet this enablement requirement.
Strategy of Waiting
There is some strategy to waiting. It may be smart to wait if you are not confident that your invention will be able to get manufactured or function as currently designed. In this case, it is smart to wait until after you have successfully produced and tested your invention. This way, you can file for an accurate patent.
Another strategy for waiting is to delay your competition. When you file your patent, you must disclose in detail how your invention works. This essentially gives the competition your blueprints for them to reverse engineer.
Choosing to Never File
Some inventors decide never to file a patent for their invention. There could be many reasons for this. If Jonas Salk had patented his Polio vaccine, he could have made $7 billion.
When asked if he had a patent, his response was “There is no patent. Could you patent the sun?” By not patenting his vaccine, he made it freely available and thereby saved many lives.
Others of us are not quite so altruistic. Choosing to not patent is more about protecting the magic that makes an invention so successful. This is why companies such as KFC and Coca-Cola have decided to keep their recipes a trade secret and never pursue intellectual property protection through filing.
Determine the Right Time to File
As you can see, determining the right time to file is not a one size fits all answer. Knowing when to file is a careful balance of invention development and intellectual property protection.
Your best strategy is to talk to a patent attorney early on. You can gain their knowledge and insight as to when will be the right time for you and your invention.
Contact us today and let us help you get your idea patented.