17 Seconds #46
Since Congress “reformed” patent law in 2013, Clocktower Law been advising startups as follows:
PATENT PLANNING – FILE BEFORE LAUNCHING. U.S. patent law changed significantly from 2011 to 2013 due to the America Invents Act (AIA) (http://en.wikipedia.org/wiki/Leahy-Smith_America_Invents_Act). The AIA was fully implemented on 2013-03-16, which made the U.S. a first-inventor-to-file country (and replaced the former first-to-invent system). The U.S. is also essentially an “absolute novelty” country. As such, you should file your patent application before you launch (where “launch” is defined as sale, offer for sale, publication, or public use) your product/service/improvement. This is the only certain way to protect both U.S. and foreign patent rights.
Does the one-year “grace period” (a feature of pre-2013 US patent law) still exist? Maybe. But why risk it?
Can you file a patent without doing a patent search? Yes. But why risk it?
A high risk patent (including one filed after product launch and one filed without a patent search) is worth less in IP due diligence – and may even be worthless. Just like you should not file a napkin provisional and should not build your IP portfolio on sand, you should not launch products that matter before filing patents.
How do you know which products matter? Look at your product roadmap. That is your patent roadmap.
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