Are your creative juices really flowing during this coronavirus shutdown? Are you busy solving problems even brought about by COVID? Perhaps you’ve been laid off or furloughed and have had plenty of time on your hands to dust off an old idea and start to make real progress with it. Or you had a middle of the night “light bulb” moment and have been feverishly working on it since.
If you haven’t yet thought about patenting, you should. And if you think there is “no rush” and that you can take your time, you shouldn’t.
You may have been operating under the common misconception that if you thought of it first you can always patent it later. However, in truth, you must file a U.S. patent application before anyone else makes the idea public, and at least within one year of you making it public (preferably before). And under the relatively new “first to file” rule, you must also file a patent application before anyone else does on the same or similar idea; otherwise, you’ll be too late.
So now, it really is a “race” to the Patent Office. And if you are working on something innovative to solve a problem you’ve experienced, or even a problem specifically related to the pandemic or remote or virtual activities in life’s “new normal,” chances are that others are working on similar ideas, too. As such, “time is of the essence” in considering your patent prospects in parallel with the development of your idea, for many reasons.
A key “take-away” is to keep your ideas strictly confidential, at least until a decision is made and acted on about patenting, starting with consulting with a patent attorney.
In working on your idea, you may have already done quite a bit of market research related to the invention and so far concluded that there is nothing out there like it. That is all well and good, but one “untapped” area of research might be patent literature, on which basis you should spend a little time doing some keyword searching in publicly-available on-line databases as available through the USPTO and Google, to see if anything like your idea turns up.
What you discover in your own “due diligence” will not only help in determining whether the idea is patentable, but can actually lead to further innovation as you consider additional improvements, for example, which may then be patentable.
Along the way, you may create drawings, prototypes, and other information that embodies your invention, or even a finished hardware or software product, all of which is helpful in patenting. However, it is often asked whether a “working prototype” is required for patenting, and the short answer is “no.” Though of course the further along you are in the development of the idea – including confirming that it works – the better positioned you’ll be for patenting.
Once a decision is made to pursue a patent, there are a number of considerations then related to objectively assessing patentability based on what is then known, utility versus design patenting, the “pros” and “cons” between provisional and non-provisional utility applications, and international aspects. Trade secret is a related consideration, particularly for things like software and formulas.
The truth is that patenting is complex, but that is not a reason not to pursue a patent – it’s like the old adage that “if it was easy, everyone would do it.” Difficult tasks are usually the most worthwhile. You’ve already done the hard work of inventing or creating something new, and you owe it to yourself to see where it goes, including determining whether it is patentable – you’ll likely regret it if you don’t.
If you have any related questions or concerns or want to discuss patenting the invention you have been working on, please let us know – we are at your service.
Post Authored by: Jeromye V. Sartain