Are There Simple And Cheap Alternatives To Patenting?

Rich Goldstein

Founder & Principal Patent Attorney
meeting over pencil drawings and designs

We all like short cuts. When it comes to a costly or time-consuming project, any short cut that saves time or money looks highly desirable. In fact, some of the best inventions arose out of this desire to make something simpler, easier, cheaper, or more convenient. But when it comes to securing legal rights to an invention that’s worthy of protection, the money you may save in the short term can actually end up costing you heavily farther down the road.

This article will focus on the two most common short cuts people try to take in order to circumvent the patent process. While these short cuts clearly cost people millions in wasted money and lost ideas, thousands of people still try them every year.

Myth/mistake #1: The “poor Man’s Patent”

No matter how many times this myth is dispelled, or how many authoritative attempts are made to stamp it out, it lives on. People want to believe it, and so this myth continues to cost thousands of inventors the rights to their inventions. Here it is: You describe your idea, put it in an envelope, and send it to yourself by certified mail. The thought is, the postmark will serve as proof of the date that the idea was invented. Right? WRONG.

The truth is, a postmarked letter an inventor mailed to himself/herself, has never been accepted as proof of inventorship. The U.S. government has a Patent System, which includes the United States Patent and Trademark Office (USPTO), a network of patent attorneys, and the courts. By doing so, they have effectively declared that this system is THE way to protect an idea. A sealed envelope will not protect you. If you rely on it—and delay starting the patent process because of a false sense of security, you can lose the right to protect your invention.

Myth/mistake #2: Misused Provisional Patent Applications

Since the inception of the provisional patent application procedure, which was created by an act of Congress in 1996, people have misunderstood and misused the process—literally throwing away their rights—because of a common misconception: They believe that, because the provisional application will not be examined—and, therefore, will not be rejected—by the USPTO, the application does not have to be as well written as a full utility patent application. To put it bluntly, this belief is FALSE.

The original idea behind provisional applications was to give inventors an option to preserve their priority before filing a full utility patent application. The USPTO will not review the provisional application; it simply gives the inventor priority rights to the invention for a period of one year. If the inventor files a utility patent application within a year, he or she will maintain priority from the original filing date of the provisional.

Now here’s the critically important detail: When creating the provisional patent application procedure, Congress specifically maintained many of the formal requirements of a utility patent application. Most notably, all provisional applications must still meet the “enablement” requirement under 35 U.S.C. § 112. What this means is that even though the provisional application will not be examined by the USPTO now, it most certainly will be scrutinized by teams of attorneys and by the courts if there is ever big money at stake. An application that does not fully connect the dots and adequately portray the invention leaves the inventor vulnerable even if someone else files LATER with their own well-written patent application. A provisional patent application can be the deciding factor in a dispute over whether someone else owns the idea.

The key to writing any good patent application is an ability to pay critical attention to the essential core elements, and make effective distinctions about them using language that is simultaneously broad and precise. This applies equally to provisional and utility patent applications. In the provisional, however, it is often possible to save money by sticking to the essentials, while perhaps eliminating some of the overkill that is customary, and even expected, in utility applications. So a well-written provisional can be a very effective tool in establishing protection for the idea, at a generally lower cost, while leaving room for further development of the idea.

However, many companies (frequently non-lawyers) sell ‘provisional patent preparation’ services, with little fear of customer dissatisfaction. These services make no effort to file a well-written provisional patent because there is no chance that the application will be rejected when filed. Few consumers who utilize these services will ever know they have been ripped off. They just won’t know if their provisional patent really protects their rights until it is too late to do anything about it.

So, back to the original question: Is there a way to save thousands on patenting? Yes. The most efficient and effective way to save money on the patent process is to have a patent evaluation conducted. If something is not worth patenting, why try to protect it—even by taking a short cut?

The patent process can be quite costly. Paying to have proper prior art research performed, and getting the right advice in the beginning, can save thousands of dollars that would have been spent attempting to patent something that could never be patented.

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