Survey Illustrates Importance of Filing Patent Applications Early

Today on his patent-focused blog Patently-O, Dennis Crouch, a law professor that focuses on patent law, provided the results of a survey that reviewed the age of patents at the time they are enforced: http://www.patentlyo.com/patent/2012/10/age-of-patents-when-asserted.html. The most striking thing about the results of the survey, in our eyes, is the incredible number of patents enforced within the first year of their life span. This illustrates that inventors are often chomping at the bit to sue infringers upon finally receiving their issued patent.

These results illustrate an important consideration for business owners and inventors: you will often know of (and want to sue) a party that has copied your product before you have been able to fully prosecute your application to an issued patent. Often times, prosecution may take up to three years or longer. Business owners, of course, are often unwilling to wait such a long time to bring their product to market. This, unfortunately, may potentially leaving the business owners open to the risk of copycats producing devices until the business owners receive issued patents.

Inventors can take measures to curb this risk. One measure is to file a non-provisional utility patent application as soon as possible. Even if an inventor does not currently know of any potential competitors at the time of developing their product, it is almost certain that they will during the pendency of their patent, assuming the product is successful. By filing early (and filing a non-provisional patent application at the outset), inventors can get a jumpstart on the three year-plus prosecution timeline and go after infringers at an earlier date.

Further, certain additional protections may be available for inventors that elect to publish their applications as soon as possible. Upon filing an application, an applicant may elect to accelerate publication of the application, which may, in some cases, publish an application in as little as 15 weeks. While a published application may not give inventors the right to sue, it provides certain rights that may act to deter potential infringers, such as a limited ability to back-date damages received in post-issuance infringement suits. Further, publishing an application may deter to potential competitors from developing products incorporating the subject matter recited in published application’s claims. These measures may provide sufficient leverage to negotiate royalty agreements or enough deterrence to prevent copycat products from ever making it to market.

If you have further questions regarding filing a patent on your invention, contact one of the patent attorneys at Mohr Intellectual Property Law.

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