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Give me a patent. Quick!

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Conventional project management wisdom tells us that from ‘good, fast and cheap’ you are only allowed to pick two. While for patent drafting there may be some good reasons to fear the quality of rushed work too, you do sometimes have very good reasons for wanting to have a patent application filed within a matter of days, rather than weeks. Fortunately, if proper care is taken, there is no good reason why such fast-paced patent drafting should weaken your patent position or deplete your financial resources.

Business moves fast, the patent office runs slow

To be successful as a business in a fast moving market, it is important to always be one step ahead of the competition. Trends and technology do not stop moving. A brilliant idea that takes too long to be converted into a marketable product or service may be outdated or overtaken by the time it is offered for sale.

Getting a patent granted for a brilliant idea can, however, take quite some time. Even when the whole examination procedure runs smoothly, a 2-to-5-year period between filing your first patent application and receiving a UK or European patent is very normal. For complex cases and in some other countries, it may take even longer. If a competitor starts a formal opposition procedure against your patent, you will have to add at least two more years to that period.

Don’t wait for your patent to be granted

Luckily, you do not need your patent application to be granted before enjoying its protective power. A patent application provides provisional protection for your invention from the moment of its official publication. This publication normally takes place 18 months after the filing of your initial application but can be pulled forwards on request. The provisional protection means that copying your claimed invention is prohibited and that an unauthorised copy-cat can be drawn to court when needed.

After grant, the monopoly created by your patent applies retroactively, back to that date of the initial filing of your application. If you consider legal action based on a pending application too risky, you can wait and claim damages for the period before grant at a later stage.

File fast and prosper

Although a patent application does not need to be granted before you start commercialising your invention, it is of utmost importance that it is filed before you share it with the public. You can only get a patent for technology that was not yet publicly available at the date of filing of your patent application. Any earlier disclosure of your inventive idea, either by someone else or by yourself, can destroy your patent.

Not only does this mean that you cannot present, advertise or sell your invention before filing the patent application. You must be very careful when sharing the details of your invention with, e.g., potential suppliers or business partners too. Discussions between businesses are implied to be confidential and nonpublic and with signed non-disclosure
agreements you can make this confidentiality implicit, but it is impossible to control what happens with information after it leaves your company. There are many examples of unfortunate companies who lost patents because of accidental or malicious  disclosures by others. Even worse, sometimes prospective business partners quickly file
their own patent applications for your ideas, thereby even making it very difficult to use the idea yourself.

The best way to avoid such problems is to file a good patent application as soon as possible. Ideally, the only person to share your ideas with before the application has been filed is your patent attorney.

When having a patent application prepared for your invention, most patent attorneys will tell you that this process will take about 4 to 8 weeks, depending on, e.g., workloads, the complexity of the invention and the time made available by the inventor to discuss the invention and early versions of the drafted application. In many situations, such a time frame is perfectly acceptable. If you manufacture the product yourself and it is not supposed to be released in the first two months, there is no good reason to try to speed up the drafting process.

In fast-moving markets, however, you may want to talk to multiple prospective business partners and suppliers, to advertise your new product, to present your new ideas at a conference, or even to manufacture and sell the inventive product at a much shorter time scale. When, amid a global pandemic, you invent a new face mask, you do not want
to wait two months or more before you can sell it. In such situation, you want to draft and file quickly, preferably today and at least within a week.

When speed is all you need

Drafting and filing a patent application in one day is possible, but generally not advisable. Drafting a high-quality patent application typically takes an experienced patent attorney about 20 hours in cases where the technology concerned is not overly complex. There is a legal possibility to do a quick-and dirty filing first and submit additional information and detail later, but in practice this often leads to weaker patents and higher costs.

Good, fast and cheap

If you take a little bit more time, let’s say at least three days, you can file a patent application that is not just fast, but of high quality too and for a price that does not exceed the price for less urgent patent applications. Essential for such threefold success is an efficient and smooth cooperation between the inventor and the patent attorney.

All good patent drafts start with a patent attorney thoroughly understanding how the invention works and how it will lead to better, more desirable products. When you want your patent application to be drafted quickly, this thorough understanding of the invention is even more important than usual, because there will be less time for  correcting initial misunderstandings at a later stage.

It certainly helps when the patent attorney is already familiar with the company and its products or, even better, has worked with the inventor before. Even more important is a  clear and complete description of the invention by the inventor. In writing, with drawings, with videos or via live demonstrations, everything is welcome. The more information the better. Leave it up to the patent attorney to determine if some information is maybe less relevant.

An initial meeting, in person or by phone, for discussing the invention and aligning expectations is highly desirable. During the actual drafting process, it is important that the inventor remains available for answering questions and reviewing early versions of the text and drawings.

If the invention is not entirely implemented in software or chemical processes, it will  probably need some clear patent drawings to properly explain the invention. Although some patent attorneys are talented draftsmen, making good drawings takes time. This is typically something the inventor can help with. When the patent attorney starts writing, he can tell the inventor what kind of drawings he would like to include, and the inventor can start drawing.

After filing

From the day your initial patent application is filed, you are free to show and explain your invention to anyone who might be interested. Be careful, however, with any further developments, ideas and improvements that are not already described in your patent application. If such further developments are worth patenting too, it is important to keep them secret until you filed a second patent application.

If the new developments are closely related to your original invention, you have a full year from the date of filing of your first patent application to file a single subsequent patent application that covers all those related inventions, which may save you some of the costs for a completely separate second patent application.

Conclusion

If your business runs fast, your patent attorney can run with you. With good cooperation, patent applications can be drafted and filed within a matter of days without compromising on their quality or a need to spend more money.

Joeri Beetz 23 June 2020


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