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Poor Man's Patent



By Grant J. Steyer, Esq., Ph.D.

You may not recognize it by name, but you have probably heard of the mythical “poor man’s patent.”  The myth purports that you can protect your invention by writing out a description of your invention, sealing the description in an envelope, and mailing it to yourself.  While the alleged protection provided by the poor man’s patent varies depending on the chronicler, the poor man’s patent does not provide any actual protection in the real world.

The draw of the poor man’s patent is plain to see.  Rather than spending money on attorneys and government filing fees, an inventor can instead simply send themselves a letter.  Unfortunately, the myth of the poor man’s patent has also been perpetuated by companies and self-help books that advise inventors to use the poor man’s patent to protect their inventions, leading inventors and businesses to rely on a false sense of security.

While the poor man’s patent may be hypothetically useful as evidence of prior inventorship, the US moved away from a first-to-invent patent system in 2013.  Prior to March of 2013, the U.S. was a first-to-invent jurisdiction.  This meant that the first person to come up with an invention was typically entitled to the patent.  In March of 2013, the US moved to a first-to-file patent system.  Under the current first-to-file patent system, the party that files a patent application first has priority and is typically entitled to a patent.  For this reason, any possible utility provided by the poor man’s patent evaporated in 2013.

While a poor man’s patent does not offer any meaningful protection, inventors and businesses are not limited to paying many thousands of dollars to file a patent application.  Instead, cost effective solutions combining provisional patent applications and government programs to reduce filing fees can be used to make an initial filing and to establish a priority date with the US patent office.  After filing a provisional application, inventors and businesses may rely on the protection provided by the provisional patent application to shop their invention to customers, potential business partners, etc. before deciding whether it makes business sense to file a more expensive regular patent application.

Instead of relying on myths and legends, there are cost efficient and far more effective and reliable means of protecting your inventions.  Intellectual Property (IP) protection is not one size fits all and your IP strategy should take into consideration your budget, business goals, etc.  After all, it does not make sense to file a patent application, if filing a patent application exhausts your resources so you cannot grow your business.

 

This article provides an overview and summary of the matters described therein. It is not intended to be and should not be construed as legal advice on the particular subject.

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