#1 // Don’t wait!
This post is part of a series of posts titled “what to do before meeting your Patent Attorney”.
Does this scene sound familiar? You have a great idea, but you do not think it is ready to patent yet.
Or maybe you think it cannot be patented. Unfortunately, many clients come to us late. Noting that the competition is often working on similar technologies and needs, filing earlier rather than later is usually a correct choice.
Ask yourself this question: do you want advice from a professional or should you self-diagnose?
There seem to be two missed concepts here:
(a) The job of a patent attorney starts before it is clear what can and/or should be protected by patent.
(b) There is no need for a final or complete product in order to generate useful (or even superior) patents.
Let’s start with concept (a). An early meeting with your patent attorney can help you figure out what parts of your planned product could and should be usefully protected and also how this might impact your business plans. A company which is able to obtain blocking IP against its competitors should probably make plans that are different from a company that cannot. In another example, if you know when you are planning to raise money, you can and should plan to have the IP state for the investment round. And, of course, you need to think about budgeting.
In an ideal situation, your patent attorney will start you on the road to integrating your IP prospects with your business prospects and plans.
R&D plans may change based on IP. For example, in the field of medical devices, it is often the case that better IP can be obtained if additional animal experiments are performed. This requires planning and time and selection of the correct experiments.
As to concept (b). Good protection does not require a final product. It should be realized that most patents will only protect parts of the product. These parts may be ready to patent. For example, if there are three solutions on the table, only one will make it into the product, but all three can be patented. In the best case, the patents will be directed against what competitors might copy, which may be known long before the product is ready.
Finally, filing for a patent usually involves publication of the patent. Most clients prefer not to publish a blueprint for copying. Filing before the product is completed, ensures this.
This is not to say that you should always file as early as possible. When meeting with your patent attorney you may receive “homework” and a tentative time line for filing. We often tell clients that their idea is not yet ready for patenting.
However, if you do not talk to your attorney “too early”, you significantly increase the risk of filing “too late”.
We do not charge for initial meetings. So if you Have an Idea/Product/Business, why not contact us? We may be a good fit for you.
Maier Fenster, Patent Attorney and Head of the Medical Device department of Ehrlich & Fenster of Ehrlich Group