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Should I patent my idea before posting it on public internet forums? Could someone who sees my post beat me to it?

Just Curious
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    What is your goal? Generate licensing revenue? Protect yourself against trolls? Protect yourself against competitors? – Luis Sep 21 '12 at 19:07

8 Answers8

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Getting a patent is an expensive process that takes several years. If you wait to get a patent first, then it's likely to be old and irrelevant by the time you post it. If you're planning on patenting an idea, it's best to not disclose anything about it in public. Aside from the potential of someone stealing your idea, you risk limiting your ability to patent it later.

The U.S. is a 'first to file' system, meaning that someone can steal your idea and file an application before you. There is a thing called a "provisional patent application" that lets you "lock in" a submission date for an idea and use the term "patent pending". If you decide to file a full patent application, the date you submitted the provisional application is used as the submission date for the patent. This can give you more time to put together a full patent application without worrying about someone jumping in and beating you to it.

bta
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    What about things that already in the public domain ? I thought it wasn't possible to patent those. – UncleJack Sep 21 '12 at 08:15
  • You can't patent things that are in the public domain. – ihtkwot Sep 21 '12 at 13:02
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    "The U.S. is a 'first to file' system, meaning that someone can steal your idea and file an application before you."

    This is a sadly common misconception. If you steal someone's idea, you are not an "inventor" in the sense of U.S. law.

     –  Sep 21 '12 at 19:49
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    @Nase- You're assuming that the true inventor can prove that they invented the invention first. Many people (especially individuals and small companies) don't keep adequate records to be able to go back and prove that sort of thing in a review hearing. With the "America Invents Act of 2011" changing the US to a first-to-file system (instead of first-to-invent), I suspect that it will be even easier to patent someone else's idea. The safest course of action is to keep the invention to yourself until you have at least filed a provisional patent application. – bta Sep 21 '12 at 20:46
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    What was the reason for the US changing to first-to-file system? – TMOTTM Nov 23 '13 at 22:31
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    Read the new 35 USC 102(a) and 102(b) of the AIA. You publishing, an intervening third party applying for a patent and a subsequent filing by you makes the intervening third party application an exception to its status as 102(a) art under 102(b). Though it is first-INVENTOR-to-file, user1053 is correct in his or her assertion that the intervening application would not have an "inventor" and thus not qualify for patent protection. You can publish as long as you file a non-provisional application within a year of the publication and receive a patent for a useful, novel and non-obvious invention. –  May 31 '14 at 05:06
  • @UncleJack - It isn't possible to patent things in the public domain. What bta is referring to is that if you DON'T file an application first, another entity can independently invent it and patent it ... even if you invented it first. Provisional applications are meant to make it easier/cheaper/faster to lock in a date (used carefully). If they 'steal' it from you and you can prove it, you can take over their patent/patent application. – SRDC Oct 15 '15 at 04:44
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I've been granted 3 provisional Patents and it cost me an arm and a leg - over $20,000 (this was in 1998 and 1999). Unless you have money to burn I offer my personal advice:

Using snail mail I post a letter via registered post to myself with the idea and get people I discuss the idea with to sign Non-Disclosure Agreements. I never open the registered letters; I keep them all in my safe. This way if someone beats me/you to it and you (or your attorney) are monitoring Patent applications, you have evidence to show the Patent Office it is not new.

Never put a good idea up on a forum. Thats one way RedGate use to come up with new products.

I discuss Provisional Patents here

My answer is you should register post a letter containing the idea to yourself, include pics, videos, documents diagrams etc and mail them to yourself. Then get any Venture Capitalist to sign an NDA, then get funding to apply for the Patent if it's got backing.

Questions

  1. Is there a Registered-Post Patent legal precedent? Wikikpedia Poor Man's Copyright

There is no provision in US copyright law regarding any such type of protection. However if the letter is forensically certified as unopened and officially dated, stamped with an authentic Registered Barcode. You can still object to the Patent being granted on the grounds that the Patent is not a new idea. To object a competing application being granted you have to lodge a complaint within 6 months. * May differ per country

tripleee
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Jeremy Thompson
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    Has this mail-to-self tactic been tested in court? – Emmaly Sep 21 '12 at 08:54
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    Mail to lawyer is probably a better strategy. – Alex Chamberlain Sep 21 '12 at 09:39
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    evidence to show the Patent Office it is not new Sorry, if it hasn't been disclosed publicly or used commercially, it doesn't count as "prior art" - so these wouldn't affect someone else's patent application, under the upcoming change to first-to-file (on 13 March 2013). –  Sep 21 '12 at 09:55
  • note: the ability to object under the first-to-invent are still applicable in many parts of the world. Dont be sorry, peoples comments are important. In my case I had working prototypes. – Jeremy Thompson Sep 21 '12 at 09:57
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    Can you post what "RedGate" product they stole? – JonH Sep 21 '12 at 13:33
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    Information kept in your safe and never publicly disclosed will not count as prior art against competitors. – Dennis Crouch Sep 21 '12 at 18:52
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    I thought you had to publish an idea for it to be prior art. Mailing it to yourself is not publishing it. – endolith Oct 06 '12 at 13:24
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    @DennisCrouch, Can you elaborate on that? Do you mean that mailing to ourself does not prevent competitors from stealing the patent in a future date? – Pacerier Jun 05 '14 at 03:08
  • @DennisCrouch, Rephrasing, do you mean that the whole idea of "Poor Mans Copyright" is a complete fallacy? – Pacerier Oct 10 '15 at 21:45
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    @Pacerier: Yes, in the context of US patents, it is a complete fallacy. – user4545 Oct 13 '15 at 00:11
  • You can still use it to argue that an idea is NOT original. That's the point. If you know a better way to prove an invention is not new or unique, I'd love to hear it. – Jeremy Thompson Oct 13 '15 at 00:13
  • First to file means exactly that. It doesn't matter if you can prove it existed in your safe long before someone filed it. What you need to prove is the likelihood that someone who patented learned it from you, which you can't prove if the idea existed in your vault. That's the difference between first to invent and first to file. Even the 1 year grace period provision of the first to file (America Invents Act) means nothing unless the disclosure is done publicly in a way that gives possible competitors the knowledge they need in order to steal your idea. – user2961555 Feb 12 '16 at 03:31
  • How can you be granted a provisional patent? There is no such thing. There are provisional patent applications, but you still need to submit an actual patent application and then have it granted to get a patent. Mailing a letter to yourself doesn't do anything to prevent someone else from patenting. Only something publicly published would count as prior art. And the "poor man's copyright" is about copyrights, not patents. – Eric S Jul 11 '17 at 18:20
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You should focus more energy on determining market-worthiness of the idea.

If the idea doesn't seem like there is much of a margin for profit, then you could consider posting it since it doesn't matter if someone steals it.

Alternatively then, you could publish it via a CC license that will limit the terrain of other patentability (due to your public prior art)

New Alexandria
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    But what if I think it's not market-worthy, discuss it online, and then Microsoft patents it? :( – endolith Oct 06 '12 at 13:26
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    @endolith - Discuss it online in a fashion thorough enough to be used as prior art. This will enable you to prevent Microsoft from patenting it (or at least make it not worth their while to try). – Ben Barden Apr 09 '13 at 21:17
  • @BenBarden: See http://patents.stackexchange.com/q/636/1454 – endolith Apr 09 '13 at 21:28
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    or put the license as CC-NY-NC as said in http://creativecommons.org/ – prabhakaran Aug 15 '14 at 18:04
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Any patent lawyer will tell you that the safest strategy is to file a patent application before making any public disclosures. Under both the old and new US patent laws an inventor can still file for patent protection for up to one year after making a public disclosure. However, other countries do not offer that right and so your non-US patent rights would be lost. In addition, filing for patent protection first helps demarcate your invention. If instead you first post it in a public forum, there may well be some later controversy regarding who invented what.

The reality is, however, that a startup company is typically not going to be very successful if they always follow the safest strategy promoted by their lawyers. Patenting is expensive and time-consuming and anyone with scarce resources will need to consider whether that is the highest and best use of their currently available resources. Many new products are patented, but most are probably not patented. Yet, their manufacturers are still able to make a profit.

Dennis Crouch
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Should I patent my idea before posting it on public internet forums?

If you post it on a public forum, then it becomes prior art for the others. So they can't patent it! You, on the other hand, have only one year to file before it becomes prior art for you as well.

Could someone who sees my post beat me to it?

Theoretically, No. Even if someone tries to beat you to it, you can always post the prior art (which you yourself posted) to nullify it [Ref:America Invents Act of 2011]. There's a good probability that the patent agent reviewing an application might miss the prior art you posted and grant the patent but this reform should take care of that discrepancy for the US. For other countries, you'll have to do a little research.

EDIT- It seems the US is changing to first-to-file (active 16 March 2013) which means that the one year grace period is gone, so that after posting online, it immediately becomes prior art for the poster too unless you file a provisitional application which costs $125. So if you want to patent your idea, you just shouldn't post it before filing it.

Community
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tipycalFlow
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  • minus one. Post something to the internet and you cannot prove the date because there is nothing physical. changing a timestamp on a "file" is useless, a file is only a pointer to data that can be altered 100%. – FlavorScape Sep 21 '12 at 07:27
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    @FlavorScape I was thinking legitimate forums like the one we're on, which maintain logs! But yeah, on others, there's a good chance of betrayal. – tipycalFlow Sep 21 '12 at 07:37
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    In addition to posting to a public forum, one can use timestamping services like http://www.itconsult.co.uk/stamper.htm – jpsecher Sep 21 '12 at 07:53
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    one year to file before it becomes prior art The US is changing to first-to-file (active 16 March 2013) http://en.wikipedia.org/wiki/First_to_file_and_first_to_invent#The_USA.27s_change_to_first-to-file This means that that one year grace period is gone, so that after posting online, it immediately becomes prior art. However, you can file a "provisional" application ($125) - then you can disclose, and have a year to file the full application. Most countries use this system. –  Sep 21 '12 at 09:37
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    @FlavorScape archive.org retrieves pages on specific dates and can be used to prove what was available on what date – Plepleus Sep 21 '12 at 14:06
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    @user905 I don't see how going to first to file would change the year to file. 35 USC 102 is not changing and that is what gives an inventor one year to file from any public disclosure, use, or publication. Publishing it online would start the one year and if anyone else (i.e. the "by another" in the 102 statute) tries to apply for a patent on that subject matter it could be used as prior art on that someone else. – Plepleus Sep 21 '12 at 14:10
  • @Plepeus You are correct. tipycalFlow and Pacerier are both wrong. The 1 year grace period is still in effect. When you publicly disclose the invention you are basically filing with the public ... so it's still first to file ... however you do need to follow up with either a PPA or NPA within a year. You can follow up with a PPA say 11 months later ... and the an NPA 11 months after that. If you do not do something within 12 months of the public disclosure though it becomes public domain. Also, publicly disclosing it does not give you patent pending ... and scares away investors. – user2961555 Feb 12 '16 at 03:39
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Should I patent my idea before posting it on public internet forums?

Yes, because if you don't, it then becomes prior art itself. You wouldn't be able to patent it, because it was already publicly known - even though it was you who published it.

You can file a provisional patent application which will give you year's grace. They cost $125. Then you can post it online - but now the clocks starts ticking, and if you don't file the full application within that year, you won't be able to.

Note: The USA used to give this year's grace automatically ("first-to-invent"), but is changing to first-to-file next year (16 March 2013).

SRDC
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    There's still a one-year "grace period" in the US, although its exact scope is a little less clear under the AIA. –  Sep 21 '12 at 19:52
  • Be careful with the grace period ... It is debatable how much of a true grace period there is in many cases. Of particular danger is anything that can be construed as "for sale" ... which is a very broad category. – SRDC Oct 15 '15 at 04:41
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In UK, displaying your invention or discussing it publicly, such as in a forum, invalidates you from making any patent application

spotthedog
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    This is not entirely correct. Public release of the invention information could be used at Prior Art against its own application. However, in the US you do have a 1-year period in which to apply for the patent, I'm sure the UK/EU have a similar grace period. – Ron J. Apr 08 '14 at 13:34
  • This comment is partially correct. The U.S. is notable for having a grace period. However, most other countries have a strict novelty requirement. – George White Apr 26 '14 at 16:58
  • This is not correct. period. 1 year grace period is still in effect. Don't rely on it though ... get a ppa at least. – user2961555 Feb 12 '16 at 03:45
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Another cheap yet powerful alternative is to certify copies of your printed materials through Notary Public.

Ramin
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  • This may NOT be considered Prior Art as it is not an act of publishing or making the document known to the public. – Ron J. Dec 17 '13 at 14:12
  • Not true since we changed to a First Inventor to File system in 2013. The patent office doesn't care who invented it first. They only care who filed it first ... including filing it with the public via public disclosure (though they do offer a 1 year grace period to the inventor / discloser in that case, during which time they must get a ppa or npa). – user2961555 Feb 12 '16 at 03:47