Its too late to file a patent application when you have crossed one of the legal barriers to patent. There are two. If you have offered the invention for sale or disclosed it publicly before filing your application its too late to get a patent, at least on the initial idea. Improvements on what you disclosed or offered for sale may still be patent-able.
2. When someone else owns the Intellectual Property
A patent application is not advised is if someone else owns the rights to your invention. One of our services is a patent search and that situation is what a patent search is designed to uncover. Its much better not to waste money on a patent application or worse go to market with a product and later receive an attorneys letter indicating that you will owe money to someone for license fees or worse your production can be shutdown. One of the most valuable patents in a portfolio a major company was selling was valuable because it granted the power to shut down the Apple production line.
3. When another form of protection is better
Sometimes a patent is not the right way to protect a piece of intellectual property. For example, clothing is seldom patented and and an easy to break design patent is often employed. Clothing designers rely heavily on labels which are Trademarked. Those they defend vigorously. Its pretty easy to show when someone is copying your label, Its much more difficult to show when they are copying your design with a minor modification.
Software is another product which is not patented much. Software writers make use of copyrights and a particular kind of a license called a EULA. If you have ever downloaded a piece of software and been asked to click on a lengthy legal document you didn't read, you have signed a EULA. That document protects the software writer from purchasers who might want to pirate their product. Software code is also often protected by Copyright. Software writers may hide irrelevant pieces of code in their product for use in proving that it had been copied and not originated independently.
3. When it's not patentable-Laws of Nature
Recently I've encountered a number of cases where the patent office has rejected a patent on the grounds that it attempts to patent a law of nature. Some of the most important and valuable discoveries such as Relativity and DNA are not patentable because they are viewed as "Laws of Nature". This argument is often used against software writers who simply encode "laws of nature" like the Theory of Relativity into software. To get a patent on something like DNA you have to show you are creating something new using the discovery, but not trying to patent the discovery itself. Gene sequencing technology would be one example of a patentable use of DNA.
4. When you want very long term protection-
Patents last a maximum of 20 years. If you want protection for longer than that time you might want to consider using a trade secret. Coca Cola has kept its formula secret for over 100 years. If they had patented the formula it would have gone into the public domain 80 years ago.
If you are not sure what kind of protection you should be seeking for your invention, contact us at BML. That's what we are there for.
Provisional patent applications have value but it’s not always what the people who write them think it is. A provisional patent give the applicant one...