February 11, 2020 | Written By Elana Bertram
This is the first post in a seven-part-series detailing the biggest entrepreneurial mistakes business owners make. The series will run over the next few weeks so check back to learn more.
These are the 7 Biggest Mistakes I have seen entrepreneurs and companies make that can devalue their Intellectual Property (“IP”) portfolio, damage their brand, or sink a deal. If you are considering turning your idea into a business, read this carefully first. There are other mistakes you can make, but these are the deal-breakers. Any one of these can cost you big bucks, credibility in the eyes of investors and potential partners, and ultimately lead to evaporation of the value of your idea.
I hope you find this list of Mistakes soon enough to avoid costing you money. Even if you fear you’ve made one or more of these Mistakes, it may be possible to right your ship. Seek a patent attorney who offers strategic planning that recognizes both your personal goals and the full potential of your inventions.
The Biggest, Most Costly Mistake is Mistake #1: Pitching your Idea Too Soon
The US patent law is clear: any application filed more than one year after a publication or offer for sale of your invention is barred from being granted a patent. If a competitor can demonstrate during examination that you offered your product for sale more than one year prior to your first patent application date, your application is dead in the water.
An “offer for sale” is any proposal of your invention to a third party that includes specifications and a price. They don’t need to buy it, you just need to make the offer for sale. Why risk thousands of dollars in legal fees to try to argue that you weren’t selling your invention when you were? This is a simple problem to avoid: file a provisional patent application before you start pitching your invention to consumers, wholesalers, or investors.
In Europe, the rule is even more strict: if you pitched your idea to someone within the European Union prior to filing an application (including a Patent Cooperation Treaty application that claims priority from an earlier US or other application) you cannot get a patent on it. Period.
The underlying concept here is that patents are reserved for “new” inventions to protect you while you build a market for your invention. It doesn’t help capitalism, commerce, or the consumer to allow a person to go back and patent the wheel – it’s too late, the moment is gone.
You may think, “No one will know;” or, “This partner is a sure thing. Once they see how great my product is, they’ll be on my side.” This is a deadly error. The patent system is not friendly to handshake agreements or general good intentions; it is concerned only with what you knew and when you knew it. If an anonymous third party submits to the United States Patent & Trademark Office (“USPTO”) that you were promoting your invention 13 months before your first application date, you run the risk of losing all patent rights for that invention and any future patents claiming priority to it. Think about that: patent rights gone forever because you didn’t count the weeks. Don’t make this silly mistake.
This is a simple problem to avoid: file a provisional patent application before you start pitching your invention to consumers, wholesalers, or investors.
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