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Patents as public disclosure

by | Jun 9, 2018 | Uncategorized

As an entrepreneur, intellectual property of some kind, and protecting it, is likely a critical aspect of your business plan. Whether it’s a trademark that builds your brand, copyrights that protect your creative works, or a patent for your invention, you have to bring something unique to the market and try to legally protect it.

A patent can be an extremely valuable asset for protecting an invention.

A patent gives the owner the right to exclude others from making, using or selling the described invention, for up to 20 years. The essence of the ‘deal’ between the government and an inventor is a 20-year monopoly, in exchange for public disclosure of the invention.

The public disclosure allows others to read about the idea and then make improvements (possibly getting their own patents) – with the overall goal being to encourage innovation and progress.

With one exception, all patent applications are disclosed to the public 18 months after the earliest filing date.

There is a downside

Of course, publicly disclosing your idea does alert competitors to what you are working on. One potential risk is that of a larger company that becomes interested in your idea, and then files multiple patent applications on improvements to your idea.

What can be done?

If publication at 18 months is a significant concern, one option is to request non-publication. This prevents publication from occurring at 18 months so that your invention is not publicly disclosed until (and only if) the patent is granted. Note though that if your invention is made available for sale and is easily understood, then not publishing the patent application may not provide much value.

Another option, for certain limited circumstances, is to maintain your invention as a trade secret. This may make sense where, for example, the main value of your invention is found in a secret manufacturing process that can not be readily understood by studying a product made by the process. Specific procedures must be followed, and a trade secret may not prevent someone else from independently inventing and patenting the same invention.

Seek advice

In all cases, it is important to consult with an experienced intellectual property attorney before deciding how to protect your ideas, and if you do decide on patent protection, to help guide you through the complex patent process.