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Is a Provisional Patent Application Right for You?

One of the most common questions I get is: should I file a provisional patent application? The answer to this question depends on what you need. To put this answer into context, it's important to understand what a provisional application is and what a provisional patent application is not. A provisional patent application is basically an official letter to the United States Patent and Trademark Office (USPTO) that a basically says: you want to file a patent application, but you're not quite ready yet. But if you do, you want to hold your place in line. In other words, a provisional patent application is a confidential placeholder that holds your place at the patent office for up to one year. Now let's talk about what a provisional patent application is not. A provisional patent application is not a patent application that can issue as a US patent. This point is so important that I'll repeat it. A provisional patent application - by itself - will never result in a US patent. A provisional patent application can only serve to secure a priority date for a non-provisional patent application. Provisional Patent Application = Confidential + Placeholder + Up to 1 year.…

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How Long Does It Take To Get A Patent?

One of the most common questions I get is: how long does it take to get a patent? My question in response could be: How long do you want it to take? The longest I've seen a patent application take to issue as a US patent was about 10 years. The least amount of time I’ve seen for a patent application to issue as a US patent was 2 months flat. The time it takes to get a US patent depends on the filing strategy used, how quickly you can reach agreement with the examiner, and how much money you have to spend on getting a patent. First and foremost, there is no guarantee that your patent application will issue as a US patent at all. For example, I've seen many patent applications go abandoned because the inventors ran out of money during the patent application process. This may be due to changing economic conditions such as the COVID-19 pandemic or an inability to reach agreement with the examiner until the inventor’s funds are depleted. But most of the time, how long it takes for a patent to issue depends on your business needs. For example, many pharmaceutical companies and…

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How Quickly Can You Get A Patent?

One of the most common misconceptions that I run into is the idea that it takes many years to get a patent application issued as a US patent. This is false. The truth is: it CAN take years for a patent application to issue as a US Patent. However, you CAN choose to have your patent application issue as a U.S. Patent in as little as a few months. How quickly a patent application can issue as a US patent critically depends upon which filing strategy you use and how quickly you can reach agreement with a US patent examiner. If you choose to file a regular priority US non-provisional utility patent application, then the United States Patent Trademark Office (USPTO) will examine your patent application for patentability in an average of 16 to 18 months. This average means that your patent application stands little or no chance of being allowed in less than a year and a half. But what if you are ready to start selling right now?!? Did you know that you can pay to go to the front of the line? That’s right! You can choose to file a PRIORITIZED non-provisional patent application that the USPTO…

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How Quickly Can You File A Patent Application?

I get calls from inventors all the time who want to know how quickly they can file a patent application. This question usually arises because the inventors are in a hurry to start selling their invention, to publish their invention, or to talk with investors. The short answer to this question is: you can file patent application as soon as it's ready. The filing process itself is electronic and nearly instantaneous. However, for the purposes of this post, it will be assumed that you will have a patent attorney help you draft your patent application. And that takes time. There is no set limit for how long it takes to prepare a patent application. However, most patent applications take about 30 to 40 hours to draft. This estimate includes the initial inventor interview when the patent attorney interviews the inventor to learn as much as possible about the invention. This estimate also includes the process of drafting the patent application and revising the patent application based on inventor feedback. This estimate does not include a patentability search or a freedom to operate search. Those are usually separate, optional services. Typically, the process from start to finish takes about 3-5 weeks,…

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Using IP To Get What You Paid For

If You Run an Innovative Business, Not Doing This Is Like Setting Your Money on Fire. Use IP Contracts to Get What You Paid For. One of the first lessons many people learn in business is that you cannot do everything yourself. You have to hire others to help you. This leads to one of the harshest lessons in business: just because you paid for it, doesn’t mean you own it. The patent laws are stacked against you. They were designed to protect inventors; not founders, business owners, or executives. Here’s how you get hurt: you hire someone as an employee or a contractor to perform research and development, to consult, or to build a prototype. You paid them so you assume that the invention will belong to you. The good news is that you are partially correct. The EXACT prototype delivered to you usually belongs to you. But what about the intellectual property? Who owns the invention? That’s the bad news: without the right legal contract in place, the inventor AUTOMATICALLY owns intellectual property in the invention. That means that they can sue you if you make copies without THEIR permission. This means they can walk out the door…

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How To Not To Lose Everything On Shark Tank

Everyone loves watching Shark Tank. It’s the drama of watching entrepreneurs give the pitch of their lives to some of the most successful and shrewd investors in history. Getting the right deal could make or break a business. But most people assume that the deals they see on TV are final. They are not. After the show, the investors on Shark Tank perform their due diligence before any checks are signed. In Robert Herjavec’s book “You Don’t Have To Be A Shark,” he reveals that there are 3 common deal breakers: Exaggerated Numbers — Know your sales, debts, and profit numbers because if you exaggerate: you lose the deal. Failing to Disclose Partners — Even sharks like to know who they will be swimming with. Failing to File a Patent Application to protect your invention. This last one may seem like a surprise, but it shouldn’t be. Why do so many investors want you to have a patent? Because patents protect profit margins and help investors get their money back. No one wants to invest money in an innovative business unless they know that those innovations are protected and can help sales. Patents protect profit margins. And investments in your…

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When should you file your patent application? Summary

This is a summary of my previous posts and a brief warning about when your patent protection starts. As disclosed in my previous posts, the earliest you can file a patent application eligible for allowance is when you can describe how to make and use your invention. That’s it. You do not need to make your invention. You do not need to have working examples. You do not need to optimize your invention. However, it is often a great idea to prepare enough working examples to prove that your idea works and would be profitable to yourself and a patent examiner in foreign countries. The latest you can file a patent application that is eligible for allowance in every country is before you plan to sell your invention or tell anyone about it without an NDA. Which brings me to my final point: your patent protection starts when you file a patent application, not when you disclose your invention to your patent attorney. If you disclose your invention to your patent attorney, and they take forever to get back to you with a draft, then you still have no protection. Tell your patent attorney exactly when you plan to start…

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Should you have Working Examples to Patent your Invention?

The usual short legal answer is no. You do not need working examples to patent an invention in the USA. However, that is a dangerous and often impractical answer. In my opinion, the answer to this question varies by country. In the USA, you are not legally required to provide working examples in your specification if you can tell a person skilled in the art how to make and use your invention. However, if you have a chemical or biotech invention, then the Examiner may reject your application, alleging that it is not enabled. That is, they do not believe that you can do what you say you can. And without working examples, you can find yourself in a very costly argument. One that you probably will not win. However, if you have working examples, you can usually win this argument every time or even avoid it altogether. That’s because it’s hard to argue with success. It’s easy to argue with a lack of it. Similarly, you would be wise to have working examples for Europe because it can be difficult to narrow your claims from broad embodiments of your invention to narrow ones. This means, you cannot easily disclose…

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Do you need to Optimize your invention before filing a patent application?

It’s not your fault. Most scientists and engineers have been conditioned for years or even decades of schooling to perfect their paper, verify their results, or optimize their yield or designs. Schools and even big businesses reward perfectionism. And of course, most businesspeople tend to rely on scientists and engineers to let them know when an invention has been discovered. Who would know better than an inventor when they have actually invented something? No, you are not required to optimize your invention before filing a patent application. The mantra of every successful entrepreneur is progress over perfection. This is especially true for patenting your invention. U.S. patent law rewards innovation; not optimization. If you can make one molecule of an anti-cancer drug, then you can patent that molecule, you can patent the method for making it, and the method of treating people with it. Tell that to a scientist or engineer or your medical staff. You can patent a chemical process with a 1% yield. From a legal standpoint, everything else is mere optimization. That being said, patentable does not always equal profitable. From a business standpoint, you may want to reproduce any result at least once to avoid patenting…

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Do I need to Make my invention before I can patent it?

Don't Wait! I get calls from entrepreneurs and startups all the time who want to patent their invention but tell me they're not ready yet because they have not had a chance to make their invention yet. This can be a huge mistake because waiting to file your patent application until you've made your invention may cause you to lose the race to the Patent Office. There are NO second chances in Patent Law. No, you do not need to make a prototype or working example of your invention before filing a patent application. Many inventors, especially startups, know exactly what they need to do to make their invention or perform their process. They just don’t have the money, time, or access to the resources right now. That’s fine. Patent law gets it. All you need to be able to do is tell me how to make and use your invention. I need the recipe, not the drug. I need the design, not the medical device. But that’s for an invention that you know will work. For example, many entrepreneurs and inventors in the mechanical, electrical, and software fields know their designs will work. If your invention is in the…

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