What is a Poor Man’s Patent?
For starters, the poor man’s patent method is outdated and will damage your chances of getting a valid patent later. The idea behind the poor man’s patent was simple: the inventor wrote down the details of his or her invention, mailed it in an unopened envelope and sent it to himself or herself by certified mail (or another proof-of-delivery method). As long as the envelope remained unsealed, the envelope would provide evidence that it is in fact the inventor’s own property and that he or she could use this against competitors.
‘Poor man’s patent’
The poor man’s patent was based on the concept of first to invent. A “first to invent” patent system awards ownership to the first person to create a new technology or product over the one who had filed an application. This system led to the emergence of the “poor man’s patent,” a piece of paper sealed in an envelope, which only served as a reference. However, that concept was rendered useless after the USPTO made a major change in the law from ‘first to invent’ to ‘first to file’. Since then, the first person to file an application for a new invention receives a patent, irrespective of who was the first inventor.
This change from a first to invent system to a first-to-file system has made the rationale behind a poor man’s patent obsolete. If someone else files first, being the first to invent is no longer a benefit. Even if you wrote out your idea and sent it to yourself, the date doesn’t matter. The date that you filed your patent application at the United States Patent and Trademark Office would be relevant. That’s why a “poor man’s patent” with no filing date is useless. And since a poor man’s patent is not recognized in the U.S., it can no longer be enforced in court. Therefore, if you plan to run a business in an international setting, a provisional patent is a better option.
While the amount of protection you receive depends on the chronicler, you should remember that poor man’s patents are not actually effective protection. Moreover, you cannot file a patent if you’ve already published your invention in the public domain. That’s because the patent itself is not valid over the prior art.
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DIY “Provisional” Patent Application
Even though the poor man’s patent is not worth pursuing, it is still possible to get cheaper patent protection. By filing for a patent, an inventor can secure a priority date with the US patent office. In addition, he or she can even shop their invention to potential business partners and customers by making use of a provisional patent application. This method only provides preliminary legal protection of a patent and is a cost-effective method of patent protection albeit briefly.
As a matter of good legal sense, provisional patent applications should include a detailed technological description of the invention. It’s not enough to have an effective filing date. The invention must also be adequately described so that it can be examined by the patent office when a request for non-provisional protection is made.
This approach however is fraught with dangers. In essence, you can only use your original filing date for the matter that you originally filed. You can’t add any additional material to the claims that you make downstream. This could mean that the original filing date is invalid.
However, filing a provisional application for patent protection is overally a smart idea for many reasons. These are as follows:
- It allows you to keep your filing date.
- It doesn’t take as much time or effort to file.
- It uses an informal form of patent application;
- It is not necessary to take a formal oath or make a declaration.
- It gives you another year to test your invention on the market, and to make an informed decision about whether or not to pursue the patent.
- It avoids strenous review by the Patent Office.
Publishing Your Idea
Publishing your idea is a cheaper alternative to filing a provisional application for patent protection. In the US you have a one year grace period to file your patent application after you publish your idea in public — be it a journal, trade show or other public setting.
This method saves you the cost of filing a provisional application for patent and postpones immediate demands of cost placed on the inventor for filing. However, this will only allow you to protect your idea in the United States and not internationally as the one year grace period is limited to the US only.
When to Seek Legal Guidance
In protecting an invention or new method of business, sometimes it can be hard to know when it is time to speak to a lawyer. This is especially true for early stage businesses and founders looking for tractions and investors.
To answer this question, looking at examples can help.
On November 4, 2021, Facebook was sued by a defunct startup called Phhhoto for allegedly violating antitrust laws. The lawsuit claimed that Facebook copied Phhhoto’s popular app, which allowed users to create looping videos similar to the popular app Boomerang, and integrated it into Instagram without giving credit or compensation to Phhhoto. The suit alleged that this action effectively killed Phhhoto’s business and violated antitrust laws by using its dominant market position to crush competition.
The lawsuit revealed details about how Facebook and Instagram executives allegedly discussed and planned the cloning of Phhhoto’s app. Emails and internal documents showed that they were aware of the similarities between the two apps and even discussed whether to give credit to Phhhoto or not. However, in the end, they decided to launch the cloning app on Instagram without giving any credit or compensation to Phhhoto.
If you’re thinking of launching a startup, it’s important to think about patents early on. After all, if your company has the next Instagram or Boomerang on its hands and then gets bought by Facebook before it ever goes public—like Phhhoto did—you’d want to be able to protect yourself with patents instead of relying on antitrust claims.
Had Phhhoto secured patents for its product earlier in the game, they may have weathered the storm. With protection under patent law, the company would have been able to go after infringers and claim all provable damages in a patent suit and be in a far stronger position than the current unfair competition allegations.
Bao Tran, a Senior Principal at PatentPC, notes that “This lawsuit shines a light on the challenges faced by smaller startups in nimbly dancing with these giants while getting market traction and possible investments from strategic players in the space. Overall, securing a patent early can provide valuable legal protection and commercial opportunities for the first-to-file innovator. The patent can prevent the competition from selectively copying ideas that gained rapid traction and avoid the R&D expenses by being a fast second-to-market company.”
Early Patent Filing
One of the best things to do is to secure a patent early in the development of an invention or idea. Some advantages of this include:
- Establishing legal ownership of the invention and preventing others from using, making, or selling it without permission.
- Securing an early date of invention, which can be important in the event of any future disputes over applicable prior art.
- Allowing the inventor to publicly disclose the invention and seek investment or licensing opportunities without fear of losing the ability to obtain a patent.
- Creating a barrier to entry for competitors and potentially increasing the market value of the invention.
- Providing a potential source of income through licensing or enforcement of the patent rights.
One advantage of securing a patent early is that it can provide early warning of potential infringement and allow the patent owner to take action to prevent it. Early filing also allows the patent owner to claim priority from the filing date, which can be important in establishing the date of invention and determining the scope of the rights granted by the patent. Additionally, filing early can provide a strategic advantage in the marketplace, as it can deter competitors from entering the market and can provide leverage in negotiations with potential licensees. Finally, early filing can allow the patent owner to begin generating revenue from the invention earlier, as it can allow the owner to begin licensing the technology or selling products incorporating the invention.
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Another advantage in filing early is that you don’t yet have a best mode in your mind. This is important for founders who prefer not to tell the world about how your commercial deployed system works. The best mode requirement is a requirement under United States patent law that the inventor must disclose the best mode contemplated by the inventor for carrying out the invention at the time of the patent application. This requirement is intended to ensure that the inventor does not keep the best mode of practicing the invention secret, but instead shares it with the public in the patent application. The best mode requirement is set forth in 35 U.S.C. 112(a), which states that the specification of a patent application must include a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the invention. The specification must also set forth the best mode contemplated by the inventor of carrying out the invention. This requirement applies to all types of patent applications, including utility, design, and plant applications.
Advantageously, if you file when the idea just popped into your mind and you are doing technical evaluations of alternatives to implement your invention, as long as you disclose all those variations that you are aware of at the time of filing, you have satisfied your obligation with the law. A year from this filing when you have your commercial implementation, that information is not in the public domain. Thus, filing early can enable you to have your cake and eat it too.