Should I delay filing my patent?

canstockphoto1403511Some people I speak to have been advised that they should not file a patent application before they have fully investigated the commercial aspects. This advice seems to be mostly coming from commercial advisors.

I can see that in some circumstances this would be the right approach, but I wonder if the risks associated with this approach have been properly thought through.

I’ll be straight about this – you’re not the only one working on your idea. As a patent attorney, I can tell you that chances are there are plenty of others in this big world that are actively working in the same area.

I see it all the time in patent searches. There are always patents that have some bearing on your idea and competitors are working as hard as you to be successful.

If you are the second to file a patent application to an idea, you lose. The first to file gets the patent. My clients have had near misses like this.

Also, it is easy to lose your patent rights if you disclose your idea to the wrong people before filing. If your disclosure isn’t confidential, or if you can’t prove that your disclosure was confidential, then merely disclosing the idea invalidates your patent.

Finally, telling people about your idea before it is locked down is very trusting of you. Are you sure that your idea won’t leak out?

By all means get commercial advice before filing a patent application, but consider if delaying a patent filing is, on balance, worth the risk.

Justin Blows

j.blows@phoenixip.com.au

+61 (0)410 013 089