What are smart product launch patent strategies?

A patent game plan for product launch

Deciding whether to file a patent application before or after product launch is not easy. While much can be said about the advantages of patenting before public disclosure, the difficulty in the decision often comes down to patent costs. Investing a lot of money in patenting a product before verifying commercial success can seem risky. Yet, the risks of waiting to patent until after your product becomes a hit may be even greater as competitors flood the market with cheaper knockoffs. So, let’s explore how startups can reach a proper balance between the need for patent protection and the high costs of patent protection.

Do you care more about your product’s functions or looks?

An effective IP strategy should be driven by the core protectable features of your product. If the outward appearance of your product is the main feature, think you should lean towards design patents. If you are more concerned about how your product works, and less about how it looks, then you should consider utility patents. In some cases, it may make sense to file both utility and design patent applications.

Launching product with primarily visual features

If your product is very simple, a worthwhile question to consider is why customers might buy your product. If the reason has to do with the way your product looks, then you should consider protecting the ornamental appearance of your product with a design patent.

If you decide to forget about utility patents, and instead pursue only design patents, keep in mind the following limitations and distinctions:

  • you may not be able to stop competitors from making similar products that have a different appearance, but serve the same purpose
  • you may need to file multiple design patent applications to cover a variety of different product designs
  • the cost of obtaining a design patent will be significantly lower than that of a utility patent: generally under $3,000 based on our firm’s flat fees for a small entity applicant with fewer than 500 employees (assuming no Office Action rejections)

Launching product with primarily functional features

If the unique features of your product are primarily functional, you need to be thinking about utility patents. Generally, the utility patent application process is longer, more expensive, and more difficult than the design application process. Utility patents require significant investments of time and money, so you’ll need to ask the tough questions of whether it makes business sense to pursue utility patents.

Patent before or after product launch?

If your budget allows, it’s always best to file patent applications before launch. Those who are first-to-file with the USPTO generally win the patent race. If a utility nonprovisional application is cost prohibitive at your current stage of your startup company, consider filing a provisional patent application to buy a year’s worth of patent-pending status. Don’t rely too much on provisionals since they carry significant risk in being deficient on details, especially if you are writing the provisional applications yourself.

Just remember that the primary objective of a provisional is deferral of legal costs while maintaining at least a minimal level of patent protection. Keep in mind that the Patent Office does not review provisionals, so you will want to file your nonprovisional sooner in order to get an earlier place in line for patent examination (if you care about getting a utility patent granted sooner).

If you are considering foreign patents, you must file first before any public disclosures. For example, you can first start with a US patent application filed before launching your product. After securing a US patent filing date (priority date), you must make sure to file any foreign applications or an international PCT application within one year of the US priority date. That way, your foreign applications will backdate to your earlier US priority date and thereby precede any intervening public disclosures you may have made after your US filing.

Consider flat rate patent applications

If you are leaning towards utility patents, but are concerned about high costs, consider working with an IP firm that charges flat rates for utility nonprovisional patent applications. The transparency of a fixed fee patent application will enable you to budget accordingly and see if a nonprovisional might be possible at an earlier stage in your startup.

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Frenda Williams
Frenda Williams
2023-02-21
I have had the pleasure of working with Vic and his team at Innovation Capital Law Group on Trademark creation and contracts. As a solo and non-tech founder, the assistance, guidance and recommendations from Vic and his team have been INVALUABLE. And, with the knowledge that I have a Solid, well versed and caring legal team I can turn to, I have the confidence I need to navigate the intricacies of the tech industry as a solo founder. With that being said, If you’re a startup and you’re looking for a legal team that speaks your language, knows the industry and makes you feel like family…. Innovation Capital Law Group is a Perfect fit for you, your company and your team. Five out of Five Stars… don’t let their brilliance blind you 😁
Shiwei Liu
Shiwei Liu
2023-02-20
Excellent service and quick response. Lots of informative documents on its website.
Chang Chien Michael
Chang Chien Michael
2023-02-20
I have worked with iCap for more than 7 years. I am very glad with his professional knowledge that 7 utility patents were granted by USPTO. Vic and his team are very efficient and knowledgeable. Every time he can transcribe my design idea perfectly in two weeks and file it with no rejection from USPTO. The other service including the granted patent following up is always in time to remind me to take actions. That is why I still stick on iCap as my first priority when I want to file a US patent.
Mats Johansson
Mats Johansson
2023-02-20
We have been happy client for 10+ years. Awesome Patent Law Firm!
Hanson Chang
Hanson Chang
2023-02-16
Glad to write a review for Innovation Capital Law Group. We previously worked with a big law firm (2200 employees) on our patents, and decided to shift over to Innovation Capital. It was a great decision, this team got our patents done faster, more effectively, at a lower cost, and with broader claims. Win all around
Genevieve Springer
Genevieve Springer
2022-09-09
Clear, discernible tools and strategies couched within a business conceived from a genuine interest in doing right by founders.
InPlay Inc
InPlay Inc
2022-06-30
Vic and his team have been providing us with the best patent application experiences we could ever have in our entire career life! Their professionalism and technical knowledge have really saved us a lot of communication effort and time on the applications. Definitely highly recommend if anyone is looking for help with IP protection for their business.
Meg Crowley
Meg Crowley
2022-03-05
After working with Vic and his team at Innovation Capital Law Group, our organization is confident our trademarks were solid and protected. Thank you team.
Andy Dong
Andy Dong
2022-02-28
I have been using Innovation Capital Law Group for a few years and continue to use them. They have provided an excellent services on our legal issues including intellectual properties and patents . They are very responsive, easy to work with and very competent . I highly recommend them.

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