What Patent Application Filing Strategy Should You Use If You’re Ready To Sell?

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June 23, 2021
Childs Patent Law
Protecting an Idea, Provisional Patent Applications

Not all entrepreneurs fit the classic startup mold.

For example, many innovative businesses have the money they need and plan to sell their invention within 1-6 months. These businesses have little or no interest in obtaining a patent in 3-6 years. This is especially true for businesses that want to be first-in-field to capture market share or are based on rapidly evolving technologies that will be obsolete within 3-6 years, such as computer software.

The preferred patent filing strategy here is typically to file a prioritized US non-provisional patent application and to get a US patent as quickly as possible, usually within 3-9 months. These businesses can then use the issued US patent to protect their sales by suing or threatening to sue any competitors that dare to copy their invention. I call this the “short game.” Move fast, grab as much market share as you can, and use your patent to defend your turf. And if you play your cards right, you may not share your market at all. You can use patents to create a legal monopoly. And if you can’t make money with a monopoly, then you can’t make money at all.

Are you worried that these businesses are obtaining a US patent too quickly? What if they want patent protection in other countries? What if they want broader protection in the US?

Not to fear.

Obtaining a US patent is often only the first step using this strategy. For example, if you are able to obtain a US patent within a year, then you can still file a PCT Application claiming priority to the US patent application to pursue international protection in other countries. Moreover, you can use tools such as the patent prosecution highway to accelerate examination of patent applications in other countries. Also, in the US, these businesses can file Continuations Applications and Divisional Applications to pursue a broader scope of protection that they may have surrendered in their quest for a quick patent.