Monday, December 14, 2009

Wasted money on a provisional patent application

Here are six reasons not to waste money on a provisional patent application.

(1) Informed people know that only an issued patent from a non-provisional application has patent rights and that there is no such thing as a provisional patent. At best, a provisional patent application allows you to mark your product as "patent pending," which is like having a toy gun in your pocket. You must file a non-provisional application within 12-months to seek a patent.

(2) That "no one else has a patent on it" is not the sole test for a patent. The 'obviousness' requirement (35 U.S.C. § 103) is so easy to fail that over 99% of all non-provisional patent applications receive a first-review rejection for obviousness. The patent office even grades examiners on how quickly and well they reject patent applications. Overcoming an obviousness rejection is so difficult that only 50% of all patent applications even become a patent. Look at the following Patent Office website:

(3) A patentability search is flawed if the search omits patent applications, as these are the basis of many obviousness rejections.

(4) Patents issued before 1976 are not searchable by the idea. To properly search these patents, you have to understand the patent classification system, so many patent searches omit them. Look at the following Patent Office website and think, would a $149 patent search really cover all this? (this is only the first level class, click GO for any one to see the second level.)

(5) All patent applications must still meet the legal requirements of teaching how to make and use the invention. (35 U.S.C. § 112(1)). A one to three-page provisional patent application is not likely to be able to meet the novelty and non-obviousness requirements (35 U.S.C. § 102 & 103) and show how to make and use the invention. (If anyone down-talks the legal requirements - run. While a provisional application is not generally reviewed, IF the examiner must look at the provisional application to prove your date of invention, and the provisional application fails - you lose the filing date, the reason you filed the provisional application, and the money you paid the company and to the Patent Office).

(6) Now that you know all this - do you really want someone to rush draft your idea in 8-hours? (No one works 24-hours around the clock - how awake would you be after working even 16 hours?)