The race to file a patent has heated up since March of 2013 when the “first-to-file” ( FTF ) system went into effect. Patents are now granted based on – literally as the title suggests – the first inventor to file rather than the first to simply invent. With inventors rushing to the finish line shortly after a stroke of brilliance, the best advice to startups is to file your patent right away to ensure protection of your ideas.
What are the dangers of procrastinating?
In addition to the possibility of another inventor filing a patent before you, there are other reasons patenting should be considered sooner rather than later. Offering your invention for sale, putting it in public use, describing it in a publication… these are important activities for a startup. They are also some of the activities that can bar you from getting patenting your invention. In the United States, a patent application must be filed within one year of such disclosures.
What if I am not ready to file?
As a startup, innovation may still be in the brewing stages and you may not be ready to pour your brilliance into a full-blown patent application.
This is the perfect time to file a provisional patent application capturing what you have already developed. While only non-provisional applications can result in enforceable patents, a provisional application can provide a more convenient way to start the process.
A provisional patent application is faster (and less expensive) to prepare than a non-provisional application, since all that is required is a description of the invention and a drawing. Once filed, your invention is “patent pending”, and you will have obtained a filing date which can later be inherited by a more robust non-provisional patent application.
You can learn how to write your own provisional patent or (to ensure that your patent is drafted effectively and filed accurately) you can consult a lawyer. Keep in mind, to actually secure your patent, you must file your non-provisional patent application within the one year of the provisional.