We get it. IP protection can be expensive. In a startup strapped for cash, any opportunity to save on legal costs is a win. And there are many scenarios where there are feasible alternatives to hiring an attorney. At LawTrades, we believe in sharing free tools and resources to help with this. Check out our free e-book chapter on IP protection, for example.
However, there are instances where seeking professional legal assistance is, in the end, the cheapest: saving on risk exposure, time, organizational bandwidth, litigation costs, and the opportunity cost of legal uncertainty. Provisional patent applications are such instances. Here’s why.
First things first: why filing for a provisional patent is so crucial
Filing first is everything
There is consensus among patent law experts that current U.S. patent law is a “first inventor to file” system, and not a “first to invent” system. The difference has far reaching consequences: the law does not protect the first person to invent something, but rather the first person to file (provided he or she can prove they are the inventor – something that is not often contested in practice).
This means that filing a patent application as soon as possible after the conception of a new invention is crucial to your IP strategy. Being first to file for a patent application is essential to your business success for at least three reasons:
It will afford you protection as the first inventor to file, allowing you to obtain the exclusive right to use, make and sell your invention.
It will deter competitors – if someone else has a similar invention, but finds your patent already filed, it is clear that you won the race, so to speak.
It will help you secure funding – your company’s IP portfolio is one of the most important considerations for investors.
Provisional patents allow for earlier filing
Everything up until now explains why you would want to file a patent application as soon as possible. But why a provisional patent application? The short answer is: a provisional patent application allows you to file earlier than you otherwise would be able to. And filing first is the strategic advantage that you want to have over your competitors.
At the early stages of an invention, you will not have enough information and detail to file a successful patent application. You will not have had time to develop the invention sufficiently to have a clear idea of its most valuable aspects, and you will not have a clear vision for the future development of the invention.
So what do you do? Buy time: file a provisional patent application.
The strategic advantage of provisional patent applications
After you file a provisional patent application, you are entitled to mark your invention with “patent pending” for 12 months.
This provides a significant commercial benefit – you can potentially take your invention to market whilst signalling to competitors that you have already filed and will therefore likely own the IP. You have a year of patent pending status that you can use to test the market and develop your invention.
Given the advantages of provisional patent applications, it is really worth your while to get it right. And that is why we suggest using a patent attorney.
Why you need a patent attorney for your provisional patent application
The legal standard of required detail that USPTO requires for nonprovisional patent applications also applies to provisional patent applications. This means that that filing a provisional patent application that does not comply with the standard that is required will be worthless.
It leaves you even more exposed, because you might think you are able to go to market with your invention, only to find out later that you do not, in fact, have protection for the invention to the extent that you thought you had.
If your provisional patent application is not specific enough and you then used or sold your invention, you have forfeited your rights. You will not be able to remedy this with a later filing.
Another risk is that a poorly filed provisional patent application could even be used as proof that you did not have a completed invention at the time of filing. This opens you up to significant legal risk.
If your filing is incomplete for some reason, your filing date (and therefore the date that your legal protection commences) will not be the date of initial filing but rather the date that the error is remedied. This can result in cases where you start publicizing your invention, thinking that it is protected, only to find out later that it was not protected.
Hiring a patent agent is the best way to minimize your risk, therefore. It has also conclusively been shown to be the fastest way to secure an early filing date. This is especially true for those in a bind for time; it takes inventors months upon months to learn patent law in order to be able to draft a decent application.
Affordable patent attorneys at LawTrades
To hire a skilled intellectual property (IP) / patent attorney simply stop by LawTrades. Inventors and entrepreneurs routinely turn to our legal platform when they’re in need of quick legal help. We offer free 30-minute consultations that can usually be set up the same day as requested.