Have a big idea but no funds to file a patent or hire a patent attorney? Have you been told to file a “poor man’s patent”? This phrase is often used when discussing how to get a quick and cheap patent.
So exactly what is a poor man’s patent?
What Is a Poor Man’s Patent?
A poor man’s patent is essentially writing out a description of your invention and then mailing that written description to yourself. This postmarked envelope supposedly acts to create the date of your invention as the date this written description was postmarked.
The theory is, this postmarked envelope would act as evidence to be used in the event there was a dispute with someone else over the date in which the invention was first invented. The truth is – the poor man’s patent was always a myth, but a myth that persisted.
Historical Reasons for the Poor Man’s Patent
Historically, the United States operated under a “first to invent” system. The first to invent system awarded a patent to the inventor who first created an invention.
Those who used the poor man’s patent idea reasoned that, by mailing a written description of their invention, they would be the first to invent it.
Change to a First-to-File System
In 2013, the American Invents Act was passed, which changed the long standing first-to-invent rule in the United States. This change brought the United States in line with other foreign patent laws that had been operating under the first-to-file rule.
A first-to-file system means that the first inventor to file for a patent has priority for that patent. This is a change from the historical practice in the United States to grant patent rights to the first inventor under a first-to-invent system.
Under a first-to-file system, your filing date is more important than ever so you can make sure to stake your claim to your idea and preserve your patent rights.
The Poor Man’s Patent Is Obsolete
Because of the change from a first-to-invent system to a first-to-file system, even the reasoning behind a poor man’s patent is now obsolete. Being the first to invent will no longer save you is someone else filed first. So even if you did write out the idea for your invention and mailed it to yourself, that date would not matter. What would matter is the date you filed your patent application with the United States Patent and Trademark Office.
Low-Cost Ways to Obtain a Patent
Since the United States operates under a first-to-file system, there is no way to get around the requirement of filing a patent application with the Patent and Trademark Office. If you are still looking for how to patent an idea in a cheaper way, there are different alternatives that can help reduce or spread the costs of a patent.
File a Provisional Patent Application
One way to avoid spending a lot of money up front on a patent application is to first file a provisional patent application.
A provisional patent is an informal patent application filed with the United States Patent Office, whereas a non provisional patent application is the formal patent application submitted to the United States Patent and Trademark Office for your invention.
Eventually, all roads lead to filing a non provisional patent application, but filing a provisional patent application first can be a helpful initial step in the process.
You can choose to file a provisional patent application on your own, and follow up with the more formal non provisional patent application once you are more sure of your idea. Of course, it’s a good idea to consult a patent attorney to understand the basic elements of the application.
Provisional Patent Application Elements
The requirements for a provisional patent application are set out in 35 U.S.C. section 111. Essentially, your provisional patent application must include:
- Cover sheet;
- Written description;
- Drawings (if necessary);
35 U.S.C. 112 sets forth the requirements for the written description, which is also called a specification. This statute requires a clear and concise description of the invention and the manner and process of making and using it. A person of ordinary skill in your field must be able to recognize the invention in the non provisional patent application and be able to recreate it.
Benefits of Provisional Patent Applications
There are multiple reasons why filing a provisional patent application first is a good idea. Filing a provisional patent application:
- Allows you to preserve your filing date;
- Does not require as substantial of time and effort to file;
- Uses an informal patent application format;
- No formal oath or declaration is needed;
- Gives you an additional year to test your invention within the market and make a more informed decision of whether or not you want to pursue the patent;
- Avoids review by the Patent Office;
- Spreads out the costs of a patent.
Publish Your Idea
A low-cost alternative to filing a provisional patent application is to publish your idea instead. Once you publish your idea in a public setting — whether that be a trade show, journal, or some other public setting — you have one year from that date to file your patent application.
This approach potentially avoids the costs of filing a provisional patent application. On the other hand, if you do so it only allows you to possibly protect your idea in the United States. But publishing your idea before filing will generally prevent you from pursuing your idea internationally.
Pursue Trade Secret Protection
Another way to consider legal protection of your idea on a low-cost basis is to pursue trade secret protection over your idea. Trade secrets are a separate type of intellectual property, and are also protectable under the law.
As explained by the United States Patent Office, a trade secret:
- is information that has either actual or potential independent economic value by virtue of not being generally known,
- has value to others who cannot legitimately obtain the information, and
- is subject to reasonable efforts to maintain its secrecy.
The bottom line with trade secret protection is that it is only available if it is possible to keep what is special about the idea a secret. It is not useful if other people could “reverse engineer” the product and discover it’s secret by analyzing it. For example, you might consider a recipe as a possible trade secret. But if your competitors could analyze the product and determine the ingredients, then it would be a poor candidate for a trade secret. If pursuing a patent is too expensive, consider consulting a patent attorney to see if you can protect any elements of your invention under trade secret law.
Your Best Option
The best option for your idea will depend on the type of invention you have, when funds will be available to you, and how much time and resources you want to invest in the process. Consult a patent attorney to better understand the right option for you.
While obtaining a patent may be an expensive process, in the long run it can work substantially to your benefit by investing in your invention up front.