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Will you win the race to the Patent Office?

There are NO second chances in Patent Law. Just ask Elisha Gray. Who? Exactly. Elisha Gray filed his patent application for the telephone just 2 hours after Alexander Graham Bell. Alexander Graham Bell went on to become one of the richest and most famous inventors in history. He co-founded AT&T. Elisha Gray — did not. Bottom line: if someone else files a patent application on your invention before you, then you lose the race to the patent office. Oh wait, it gets worse! If anyone else in the world sells or publicly discloses your invention before you file your patent application, then you still lose the race to the patent office. If innovation is important to your business, this may be the most important race of your life. For this reason, my next few posts will focus on when you can file a patent application. Want to win the race to protect your invention? Don’t wait! Call us now at 832-621-0353 before it’s too late.

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When is the Earliest you can file a patent application?

I get calls from entrepreneurs all the time who want to know if they can patent their invention. And in true patent lawyer fashion my answer is: Well, that depends... on the answer to this one simple question: Can you tell me how to make and use your invention? Patents are based on a deal you make with the government. In exchange for you coming up with an invention and publishing how to make and use your invention, the government will grant you the exclusive right to make, use, sell, offer for sale, and import your invention into the country. So the earliest you can file a patent application eligible of being granted by the government is when you can describe how to make and use your invention. I have worked with inventors who literally brought me their ideas written on a napkin because as soon as they conceived it, they can file a patent application to protect it. As long as you can provide me with a recipe for how to make your product or perform your process, then you can file a patent application that is enabled. And the more recipes you can provide, the broader you can…

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When is the Latest you can file a patent application?

I get calls from entrepreneurs all the time who want to know if they can patent their invention. And in true patent lawyer fashion my answer is: well it depends... on the answer to this one simple question. Have you sold or publicly disclosed your invention? If yes, did you do so over one year ago? Patents are based on a deal you make with the government. In exchange for you coming up with an invention and publishing how to make and use your invention, the government will grant you the exclusive right to make, use, sell, offer for sale, or import your invention into the country. But if you have already sold your invention or publicly disclosed how to make and use your invention, then why would the government grant you a patent? The public already has the benefit of your invention. Most countries will not grant you a patent on an invention that you have already published or sold. However, as with the metric system, the U.S. does things a bit differently. You may still be able to file a patent application to protect your invention up to 1 year after selling or publicly disclosing it. After that,…

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When is it TOO Early to file a patent application?

I get calls from entrepreneurs all the time who want to know if they can patent their invention. I have 2 answers to this question: a legal one and a business one. Legal Timing If you cannot tell me how to make and use your invention, then it is too early. For example, “I have this idea for a flux capacitor. When installed in a DMC DeLorean and driven 88 miles per hour and powered with 1.21 gigawatts, then the car can travel back in time.” Sounds great, but my main question will be: How exactly do you make a flux capacitor? We don’t need generalized concepts; we need recipes, formulas, blueprints, or wire diagrams, etc. If you cannot tell me how to make it or do it, then you do not have an invention, you have a research goal. By analogy, a movie pitch is not enough to make a movie: “Hey I've got this great idea for a movie. It's goanna be like Wonder Woman meets Godzilla meats Star Wars!” That’s sounds great, but before we can protect your idea, you need a script. Business Timing You can patent an invention as soon as you can tell someone…

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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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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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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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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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