Deciding when to initiate the patent process is crucial for startups people wondering how to patent an idea. Filing a patent application too early can drain your capital and lock you into a costly timeline before your company is ready. However, delaying too long can result in losing your patent rights inadvertently.
The timing of a patent application is a blend of business and legal considerations. Unfortunately, there is a lot of misinformation regarding patents for startups. Even well-meaning professional attorneys sometimes overlook the unique business dynamics of startups and focus solely on legal aspects without considering broader business implications.
This post will guide you through the legal and business considerations for filing a patent, how to develop a strategic patent plan tailored to your business, and where an expert patent lawyer can help.
How Can I Ensure I Don’t Lose Patent Rights?
The biggest threats to patent rights are public disclosure, public use, or an offer for sale of the technology. In the U.S., you have a one-year grace period after any of these activities before losing your patent rights. However, in most foreign jurisdictions, patent rights are lost immediately following a public disclosure, public use, or offer for sale.
To keep foreign patent options open, the best practice is to file a patent before making any public disclosures. However, foreign patent protection may not be necessary for every business. Some early-stage companies have mistakenly assumed foreign patents were irrelevant to them, only to realize later that they lost critical investment or collaboration opportunities because foreign protection was essential to a deal.
Thus, the first rule of patent planning is simple: file before disclosing technology to the public, using it in public, or selling it.
Should I File My Patent Application Immediately?
From a legal standpoint, filing a patent as early as possible is ideal. Since the U.S. operates under a first-to-file system rather than first-to-invent, the first person to file a patent application — even if that is not the same as original inventor — secures the patent rights.
Additionally, during the examination process, a patent examiner determines whether your claimed invention is new and non-obvious based on prior technology. Filing quickly can secure your priority date before similar products or publications emerge that could be used to challenge your application.
However, while the instinct of many inventors is to file immediately after conceiving an idea, rushing to file without a solid business plan can be a costly mistake. Filing too soon may force you into early commitments before your business is ready to support patent expenses or commercialize the invention.
The Bottom Line and Next Steps
Considering these factors, the best strategy for startups is to delay filing as long as possible but ensure you file before any public disclosure, public use, offer for sale, or investor meetings.
The next step is to consult with a patent attorney to develop an intellectual property strategy tailored to your business. Understanding what constitutes public disclosure, public use, or an offer for sale is critical to avoiding unintentional loss of patent rights.
Filing your initial patent application to obtain “patent pending” status is often within reach for most startups, making it a valuable step in protecting your innovation. Fortunately, many patent attorneys, like Jeff Schell at Schell IP in Denver and Boulder, Colorado, offer free consultations to help startups outline a strategy.
