When should you file a patent application?
Apply for a patent now or wait a bit? If not now, when? At what point will it be too late to file a patent application? The best time to file a patent application is before you show your invention to the public or make any sales. Let’s explore why.
Why file a patent before publicly disclosing your invention?
Applying for patents is like running a race. To win the race, you must be first-to-file. That means that you must secure an earlier filing date than that of a competing patent application for a similar technology with similar claims.
By filing before making a public disclosure, you reduce the risk that someone else will apply for a patent on something similar to your concept.
Furthermore, foreign countries will preclude you from patenting an invention if your earliest public disclosure date is before your earliest patent filing date (priority date). By filing a patent application before your earliest public disclosure date, you leave open the option to file foreign patents.
Already publicly disclosed? When is the second best time to apply for patents?
If you have already publicly disclosed your invention, the second best time to file patents would be within one year of your earliest public disclosure date. US patent laws give inventors a 1-year grace period to apply for US patents. Most foreign countries are less lenient, and offer little to no grace period.
However, do not wait until the end of the 1-year grace period. Remember that it’s a race to the USPTO, and the first filer wins the race.
Time travel: Why missed patent deadlines are irreparable
The timing of patent filings can be unforgiving. For example, if you missed the 1-year grace period, you will not be able to file US patents unless you make sufficiently significant modifications to the concept. Any public disclosures or sales before a patent filing date may bar you from obtaining foreign patents.
You cannot go back in time to file patents. Patent filing options shrink with the passage of time, and more money will not solve these problems. Recognize that you will have the most options for filing patents when you have not yet publicly disclosed your product.
If you choose not to file any patents before showing your concept to the public, then be at peace with that decision. On the other hand, consider filing patents if you feel like the absence of that option later will lead to regrets.
Now or never? When will it be too late to file a patent?
Generally, now is the best time to file a patent if you are not disqualified. Waiting will bring increased risks of losing the first-to-file race and of losing potential foreign patent rights. Furthermore, waiting will increase the number of prior art patents that can be cited against your patent application.
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