Join Dana Robinson for an in-depth discussion in this video Myth of the poor man's patent, part of Understanding Intellectual Property.
…Maybe you've heard that you can mail yourself an idea in…a sealed envelope, and that somehow that gives you some rights.…You take your idea, you, you complete some documents, you…seal it in an envelope, you mail it to yourself.…It get post marked and you keep it sealed for, forever until you need it.…Some people call this the poor man's patent.…This is a myth.…There is no poor man's patent.…You get no patent rights.…You get no intellectual property rights whatsoever from doing this.…In fact, the very documents that are in that envelope would be inadmissible in…court under the rules of evidence, because it was made in anticipation of litigation.…
Instead, what an inventor should do to keep track of their…creation, is keep lab notebooks, have emails, keep documents on their computer…that are dated, and have a story that is told through normal…business records that they were involved in the invention of a product.…Not mailing yourself something in the mail in a, a sealed envelope.…
The information in this course applies only to the United States.
DISCLAIMER: This course is taught by an attorney and addresses US law concepts that may not apply in all countries. Neither LInkedIn nor the attorney teaching the course represents you and they are not giving legal advice. The information conveyed through this course is akin to a college or law school course; it is not intended to give legal advice, but instead to communicate basic information to help viewers understand the basics of intellectual property.
- What is intellectual property?
- What is a copyright?
- How long do copyrights last?
- Trademarking your brand
- Trademark infringement
- Patenting your ideas
- Defending trade secrets<br><br>
- The PMI Registered Education Provider logo is a registered mark of the Project Management Institute, Inc.
Skill Level Intermediate
Q: Can a provisional be extended?
A: No. The provisional is only good for one year and it must be followed by a nonprovisional application by the end of that 12 months, or it will not only mean you can't get protection for the idea, but that others will be free to practice it after that. A provisional that is not followed by a nonprovisional effectively makes the subject of the provisional public domain.
Q: If the full utility is "held up" in the patent office and is not secured before the provisional expires, does that make your idea unpatentable?
A: See the "Can a provisional be extended?" FAQ. If you file a provisional and then do not file a nonprovisional within a year (what is called a full-utility patent application) then you are done. There is no protection.
Q: The course mentions that discussing an idea with someone without a signed NDA "starts the 12-month clock" on making your idea public domain. Is this true?
A: If you have not filed any patent application at all, and you disclose your idea without an NDA (say you show it at a trade show or put it on a website), then you must file a patent within 12 months of that disclosure. The reason is that the patent must be novel, meaning there's no prior art out there that speaks to your invention. If you disclose something prior to filing, then your own disclosure makes your later patent NON-novel. You ruin novelty by disclosing the idea. However, the US gives you a safe harbor of 12 months from your disclosure to get your patent filed; so your disclosure within 12 months is not considered a bar to novelty for that period. But, after 12 months, the disclosure by you (or anyone) of the subject matter will become a bar to your patent insofar as it makes the patent not novel.
Q: Does disclosure make an idea unpatentable?
A: A disclosure more than 12 months prior (or provisional past 12 months) will present a major obstacle to patentability because it becomes prior art. It must be disclosed in the patent application, and to the extent that what was disclosed is the same as what you want to patent, it will likely be an obstacle. In some cases, you can add new inventive features to something that was in an expired provisional patent, or to something that was disclosed ... as long as what is new is novel and is not obvious in light of the prior disclosure or prior expired provisional patent.
A: Could your utility patent be revoked even if the people you discussed your idea with kept it confidential? (In other words, is an idea you talked about 12+ months ago unpatentable because you talked about it?)
A: Generally, if the subject has not disclosed, then it is arguably still protectable and patentable. You don't have have a signed nondisclosure, but a knowledge of the confidentiality and an obligation to keep it confidential. If you gave an open talk at a trade show about it, and it happens that no one talked about it, you still have a disclosure problem. If you told your friend about it and she hasn't told anyone, then it is probably still confidential and not disclosed.