Why not file a patent application?

Deciding whether or not to file a patent application is not easy. Endless questions may be circling in the minds of founders. Will the innovation work? Will customers want my new product? What if it flops?

The difficulty lies in the uncertainty of the future. If you knew for sure that your new product would be a huge success, then the decision to apply for a patent would be easy. But, you do not and can not know the future. You are unable to guarantee results much like a patent attorney cannot guarantee that your patent will be granted.

What are bad reasons for filing a patent?

For smaller companies and startups, the decision of whether or not to patent might have less to do with the probability of success and more to do with benefits of patent-pending status. Before delving into those benefits, it may be worthwhile to explores some decent reasons not to apply for a patent. Here are some bad reasons for applying for a patent:

  • you feel that your patent will solve the world’s problems and that there’s no way a patent examiner will fail to see this;
  • you believe that licensing your patent-pending idea will generate a great deal of money even though you do not have any serious potential licensees contemplating a deal;
  • you believe that no one else has thought of a similar concept since you do not see any similar products currently in the marketplace;
  • you assume a design patent will cover the useful functional features of your product.

What are bad reasons for not filing a patent?

Many common misconceptions surrounding patents may also lead to poor choices in declining patent protection. Here are some bad reasons for not filing a patent application:

  • patents are too expensive to enforce or litigate;
  • my brand is sufficient to protect my product in the marketplace;
  • you assume your concept is not worth protecting because it’s too simple;
  • you believe competitors will not copy you;
  • you don’t see the value of patent-pending.

Now that we’ve uncovered some poor reasons for making patent decisions, let’s explore good reasons for deciding whether or not to file a patent application.

What are good reasons deciding whether or not to patent?

We discussed several factors on why patents matter to startups. In addition to those reasons, the following factors may not be as evident to potential patent filers:

  • more cost-effective ways to enforce patent rights through IP enforcement programs by ecommerce platforms;
  • marketing value of a proprietary technology or product;
  • boosting the value of your company for a potential acquisition or merger.

When is the right time to file a patent application?

If you have decided that filing a patent makes sense, then the timing will be critical. The first-to-file rule should cause you to pursue an earlier filing date if possible. If you must delay, then the US gives you a 1-year grace period from your earliest date of public disclosure, but foreign countries may not give you any grace period at all.

What is the cost of a patent?

You can’t think of filing patents without considering the costs. Budget is always a factor especially for smaller companies, which is why our firm provides fixed fee billing. Here are some helpful articles that provide rough cost estimates for the initial filing and ongoing prosecution:

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Vic Lin

Startup Patent Attorney | IP Lead Partner at Innovation Capital Law Group
We align ourselves with Davids fighting Goliaths. Our registered patent attorneys work as a team to equip startups and founders with solid IP rights that facilitate funding, growth and sales. Email or call us so we can get to work on your IP: (949) 223-9623 | vlin@icaplaw.com