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What can I do if I missed the 12-month provisional patent application deadline?

The conventional wisdom among patent attorneys is that if you don't convert a provisional patent application over to a non-provisional patent application within 12-months of filing the provisional application then you basically have 3 options.

Option 1 - Refile The Provisional Patent Application

If your provisional patent application expired or was abandoned, it is as if the application was never filed. Because it is as if you never filed the application, you can file the same or updated application again. You will again be patent pending and have 1 year within which to convert the provisional to a non-provisional patent application.

The major drawback to this option is that you lose the original filing date (i.e. the date of invention or priority date). This means that if someone else filed a patent application after your original patent application but before you refile the patent application, they now predate your patent application. Additionally, if you or someone else public disclosed the invention at any point before you refile, that now acts as prior art against you.

Option 2 - File A Non-Provisional Patent Application

In option 1, when you refile the provisional patent application you restart the clock for another 12 months before you have to convert the provisional patent application to a non-provisional patent application. Alternatively, you can directly move to file a non-provisional patent application that doesn't link back to the original provisional patent application. Once you file the non-provisional patent application you will again be patent pending, but the same drawbacks apply as with option 1.

Option 3 - Do Nothing

There may have been a reason why you didn't convert the provisional patent application to a non-provisional patent application. If so, there is no obligation or requirement to proceed forward with your patent application. If it no longer makes sense to seek patent protection or you don't have the funds, then just proceed forward with your business without patent protection.

"Grace Period" Revival

Until 2013, if you missed the 12-month deadline for the provisional to non-provisional conversion deadline, there weren't any other options. Choose options 1, 2, or 3 and move forward. As of 2013 here is a 4th potential option, "to restore priority or benefit rights for patent applications". This option is relative new and unused. In fact, the majority of patent attorneys have never heard of this option and if they have they have never used it.

This option basically provides a 2-month grace period after the original 12-month deadline. Now, there are a few caveats to this option:

1) This option is not free. This option entails the preparation and filing of an appeal where you claim the missing of the deadline was unintentional. This requires attorney time to prepare the appeal and a fee to file the appeal.

2) You must file the non-provisional patent application before or at the same time that you file the appeal.

3) Because the option is rarely used, it is largely untested and uncertain the likelihood of a successful appeal

With that in mind, if the original filing deadline is important, this option does provide an alternative option to the convention options if you miss the provisional patent deadline.







About the Firm...

Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.


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2. How Long Does It Take To Get A Trademark?

3. Why Are Patents Important?

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Miller IP Law is a group of attorney's, based out of Mountain Green, Utah, who are excited to help you build your business and further innovate market places and economies. Please consider looking at our services, billed at flat rate, and be sure to grab a free strategy session to meet with us!

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Myth If I Get A Patent My Invention is Safe from Infringing on Other Patents

What Is Infringement

Myth If I Get A Patent My Invention is Safe from Infringing on Other Patents

Infringing someone’s patents can be very damaging to a business. It is illegal, can lead to litigation, and steep monetary penalties. If you set out to attain a patent, you most likely are aware of this and have chosen to protect your invention and yourself from liabilities that could follow otherwise. One thing, however, to keep in mind when seeking a patent or after attaining a patent is that your issued patent is a specific document that protects on a certain set of matters. It will not clear you or your business from all liability attached to your product regarding infringement of another creator’s work. There are both direct and indirect matters we recommend you factor into your intellectual property strategy.

Let’s recap, infringement is the use of another entities protected invention without permission of that entity. While this is straight forward enough to seem simple, in the real world the complexities of patent infringement can be complicated and confusing.

Most people think of infringement as “direct infringement” which is use of the patent holder’s product without permission. If you make “Widget A” marked with patented on it and I start making and selling “Widget A” without your consent. However, other forms of infringement are just as destructive. For example, a patent may provide broader coverage than a specific embodiment of an invention and may cover a variety of different variations of an invention. In another example, indirect infringement is a case where you do not infringe on another patent, but you aided or enticed the infringement in some way.

Someone who may be liable for indirect infringement could be a distributor, for instance, who is selling a device that directly violates another entity’s intellectual property (IP).

Let’s look at another common example of how an entity with a patent may violate someone else’s patent. Many inventors may feel that they are clear from infringing a patent when they file a patent on improvements to an existing product. Whether or not the patent is allowed by the United States Patent and Trademark Office (USPTO), a product that at its core is built on an existing product and then improves on that existing product may be infringing the original product.

In determining infringement, a court may consider the use case of an invention, differentiation factors between products, and other factors to help determine to whom which patent rights are owned. This is another reason patent searches and other analysis performed by both you and your attorney are integral parts of your application process.

Myth If I Get A Patent My Invention is Safe from Infringing on Other Patents

It is also important as your business grows and changes that you do not make alterations outside of your patent that would lead your company to infringe on existing patents. As mentioned above, your patent is for a very specific set of features and uses. Adding features to or changing the design of a product may affect how a court will view your current product as well as your competitors. This is not to say that you should avoid making improvements to stay competitive, this is just a reminder to be careful and strategic of your business. Remember some of the alterations you may have made yourself were differentiators from existing products, so it is important you continue making those considerations as you release future iterations of your product.

Finally, another place to pay close attention to regarding patent infringement is your product distribution chain. On one side, your patent may use a part in manufacturing that is protected by someone in your supply chain. Without that entity’s permission, your product may infringe the manufacture’s patent. In simpler words, yes, you can infringe the patents of a manufacturer or supplier you have been purchasing your product from. Even if it sounds like ridiculous, it has happened before. To avoid this issue, it is worth ensuring any agreements with a manufacturer or supplier includes the ability to utilize their patents in the manufacturing of your products from them and/or the purchase of any products from them.

While this article is not a comprehensive coverage of all potential dangers to navigate as a business, these are some of the danger that you should consider. If a company sends you a Cease and Desist letter or any other claims that you are infringing on their intellectual property, whether or not you feel that you are infringing their IP, reach out to an patent litigation attorney to understand the potential issues and dangers associated with the letter. Feel free to check out our litigation services that range from flat fees to hourly rates. If you do not have a patent but would like to find out how you can protect your inventions, please reach out and schedule a free strategy session with us so we can help protect and grow your business.







About the Firm...

Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.


Top Blog Articles

1. Cheapest Way To Get A Patent

2. How Long Does It Take To Get A Trademark?

3. Why Are Patents Important?

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Miller IP Law is a group of attorney's, based out of Mountain Green, Utah, who are excited to help you build your business and further innovate market places and economies. Please consider looking at our services, billed at flat rate, and be sure to grab a free strategy session to meet with us!

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Can I Patent Software?

Lots of inventors and entrepreneurs ask us the question "Can I patent software? Can software be patented?" The direct answer is: “No, unless…” 

That “unless” is a complex and sometimes confusing qualifier for many inventors and patent practitioners alike. That qualifier includes a requirement that the patent application tie the software to an improvement to a physical operation of the computer or an improvement in a process executed by the computer.

In a time when it is increasingly common that software is delivered via download as opposed to the floppy disk of yesteryear or even the more familiar CDs, DVDs, or flash drives, this can be a difficult concept for an inventor, designer, or distributor. Also, even if the software is tied to a structural element, there are further limitations.

What CAN'T Be Patented

That structure cannot simply be “transitory” or, in other words, one that stores the software in passing as a signal or carrier. Add this difficulty to the deeply divided opinion within the software industry regarding patentability of software generally and it’s a wonder software is ever protected as intellectual property at all. 

Nevertheless, that protection is highly sought-after and for the first time in history, application for patents involving software has out-paced all other forms of patent.

Global Forces At Play

Courts seem to struggle with figuring out what many software patents actually protect. Some suggest that this is a by-product of the ever-evolving nature of software itself. Others suggest that the sheer volume has lowered the quality of the patent applications and granted patents. New Zealand has taken aggressive measures regarding software, and many other jurisdictions outside the US also have interesting takes on the patentability of software.

 Will this lead to similar “shake-ups” on other national stages or mark the beginnings of a global trend? It is hard to say and it seems only time will tell. For now, the software patent is a tricky but valuable asset in the current market.

How Do I Take Action Now??

Since the law is so fluid and varies from case to case, it's difficult to determine what you should do based off of one article.

In order to TRULY determine if you can patent your software, you WILL need to talk to an experienced patent attorney that knows software.

Luckily, we offer FREE strategy sessions for just an occasion. In a strategy session, we will listen to your patent idea and inform you of the best options available to you. There is no obligation on either end, we just want to arm you with the information you need.

If it turns out that your software is patentable, we would love to be the attorneys that represent you. We specialize specifically in startups and small businesses. If that describes you, you may want to check us out!

 







    About the Firm...

    Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.


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    3. Why Are Patents Important?

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    Miller IP Law is a group of attorney's, based out of Mountain Green, Utah, who are excited to help you build your business and further innovate market places and economies. Please consider looking at our services, billed at flat rate, and be sure to grab a free strategy session to meet with us!

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    Can I share my patent pending idea?

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    The top questions after you are patent pending

    Now that you have filed a patent application, the question is can you share your idea/invention with others?.

    Question 1: Should I share my idea or invention before applying for a patent?

    While there is no law against sharing your idea with others before you are patent pending, presuming budgets allow for it, it is never beneficial to share your idea or invention before filing a patent application. If you do so, you may lose foreign patent rights and risk someone filing a patent application for your idea or invention with the Patent Office before you do.

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    Should I share my idea or invention before applying for a patent?

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    What can I share after filing a patent application?

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    Can I stop someone with patent-pending rights?

    Question 2: What can I share after filing a patent application?

    Once your patent application (provisional patent or non-provisional patent) has been filed, the question arises whether you can discuss your invention or idea given the new obtained patent pending status.

    The simple answer,, yes you can discuss whatever is discussed in the application. Just be careful not to discuss new or different ideas (such as improvements or new versions) not included in the patent application. If you have new ideas or improvements not included in the patent application you will want to file a new patent application to cover those ideas or improvements (if the are valuable) before discussing them with others.

    Question 3: Can I stop someone with patent-pending rights?

    As a reminder, the owner of a patent application does not have any actual rights to enforce the patent application against anyone unless/until the patent is granted. Your patent rights only come into play if/when the application is granted. If/when the patent is granted you can reach back up to 6 years in the past (or until the date you filed the patent application - whichever is the shorter amount of time) and enforce the granted patent against infringers.

    Question 4: What protection does patent-pending provide?

    Patent-pending inventors or owners are protected in that they can discuss their invention without hurting their ability to get a patent. Further, waiting until after you have filed a patent application to discuss your idea or invention minimizes the chances of someone else filing a patent application on your idea under the first-to-file rule. Waiting to discuss your idea until you are patent pending also allows you to apply for international patents, because many foreign countries don't let you file a patent application once you have publicly disclosed your invention to others (i.e. conferences, websites, offering it for sale, etc.).

    Question 5: What are some patent-pending fails?

    There are a few caveats to patent pending “protection.”

    - As discussed above, the patent application may never issue. If a patent application never issues and becomes abandoned, the abandoned patent application resulting in zero patent rights.

    - If a non-provisional patent application is filed without a non-publication request, the patent application is published after 18 months, exposing potential trade secret information to the public without getting any exclusive rights in return.

    - If the inventor or owner files a provisional patent application and fails to convert it to a non-provisional application within a 1-year time-frame, the inventor or owner loses their date of invention (priority date). The date of invention is the date the government defines as the day you invented you invention.

    - If you don't convert your provisional patent application with the 1-year time-frame and disclose your invention to the public over a year before filing a non-provisional patent application, the loss of the invention date will stop an owner or inventor from later getting a patent application. You will also lose any foreign patent application protection.

    Question 5: What are some patent-pending fails?

    Once you are patent pending, you can discuss your invention with others. Just be careful not to let a provisional patent application go abandoned. If you are not yet ready to file a patent application, avoid publicly disclosing your concepts and use non-disclosure agreements (NDAs) where ever possible. This will make sure you maintain protections on an individual level.

    If you need help with creating a NDA our sister company, SnapLegal, offers an inexpensive DIY kit NDA for just $67.







    About the Firm...

    Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.


    Top Blog Articles

    1. Cheapest Way To Get A Patent

    2. How Long Does It Take To Get A Trademark?

    3. Why Are Patents Important?

    Miller IP Law


    Want to chat more about this topic, or got a burning question? Take advantage of instant chat and send us a direct message

     

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    About Our Firm…

    Miller IP Law is a group of attorney's, based out of Mountain Green, Utah, who are excited to help you build your business and further innovate market places and economies. Please consider looking at our services, billed at flat rate, and be sure to grab a free strategy session to meet with us!

    Start Your Journey

     

     

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    Can I get a refund on my patent if it isn't patentable?

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    Inventors often ask me if they are able to get a refund if their patent is denied or rejected (i.e., if the US Patent and Trademark Office refuses to issue a patent for their invention). The simple answer is No. Law firms (including patent law firms) do not offer any refunds for the legal work that they have already performed. Generally, attorneys are prohibited by the bar associations from offering guarantees or warranties for the outcomes of their legal work. Offering a refund may be considered a guarantee or warranty. The reason a refund, guarantee, or warranty can't be offered is simple, whether the USPTO (United States Patent and Trademark Office) issues a patent for an invention depends on many factors. The majority or all of these factors are out of the control of the patent attorney. For example, the USPTO may refuse to issue a patent application for an invention when an Examiner at the USPTO finds a previous patent or patent application (prior art) that anticipates the invention or renders the invention obvious. Alternatively, the inventor may run out of money or decide not to pursue the invention any further once the patent application has been filed with the USPTO.

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    Additionally, there are governmental fees associated with filing and prosecuting a patent at the USPTO, and the USPTO does not issue refunds for those fees. The governmental fees may include filing fees, fees for processing the patent application, publication fees, and examination fees. The USPTO collects these fees regardless of whether the patent application for the invention is subsequently issued as a patent.

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    There are options to increase the likelihood of a patent application being allowed and issuing as a patent. For example, before filing a patent application the inventor may have the patent attorney do a landscape or patent search (also known as a “prior art search”) to better understand the inventions and patents already in the public domain, i.e. what has already been invented. While a prior art search does not guarantee the patentability of an invention, the prior art search gives the inventor a better idea of what they may face during the examination of the patent application. If the prior art search turns up a patent application or patent that is close to or identical to the invention, then the inventor may decide not to even apply for a patent for the invention.

    So, the simple answer is that there are no refunds by the USPTO or a patent attorney for a patent application that is denied or gets rejected, but there are ways to improve your odds of getting a granted patent before you file for a patent.







    About the Firm...

    Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.


    Top Blog Articles

    1. Cheapest Way To Get A Patent

    2. How Long Does It Take To Get A Trademark?

    3. Why Are Patents Important?

    Miller IP Law


    Want to chat more about this topic, or got a burning question? Take advantage of instant chat and send us a direct message

     

    Miller IP Law

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    About Our Firm…

    Miller IP Law is a group of attorney's, based out of Mountain Green, Utah, who are excited to help you build your business and further innovate market places and economies. Please consider looking at our services, billed at flat rate, and be sure to grab a free strategy session to meet with us!

    Start Your Journey

     

     

    Get weekly stories and information about protecting intellectual property with our e-mail Newsletter today!



    Need To Get In Touch With Us?➡

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    Flat Fee Pricing

    Straightforward for Patents and Trademarks



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    Patent Application

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    Trademark Application

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    Copyright Application

    Read more →

    Getting to Computer-Drafted Patents

    A Rock-Solid Patent for under $1,000? AI Can Get Us There if We Have the Right Focus.

    I love working with entrepreneurs. I admire their charisma and abundance of positive energy. That’s why my practice focuses on serving entrepreneurs. That’s also why I hate telling them the reality of getting a patent: It’s going to be expensive. The attorney’s fees alone can often run over ten thousand dollars just to get a patent granted. This pales in comparison with the cost of enforcing a patent, which can run hundreds of thousands and even millions of dollars. The worst part of my job is telling an excited entrepreneur how much it will cost to protect what they are constitutionally entitled to (yeah, a patent is a constitutional right!).

    But what if I told you that in the next ten years, a patent could cost only a few hundred bucks? I think we’re a lot closer to that than most patent attorneys are willing to admit. The biggest driver of patent cost is attorney time. Focusing technology development on automating the meat of an attorney’s work, rather than the fluff as most current solutions do, has the potential to dramatically reduce the cost of obtaining a patent.

    It’s no secret that hiring a patent attorney is not cheap. But this is rightfully so; patent law is deeply complex, to put it mildly. There’s an adage among patent attorneys: “There is no such thing as a cheap patent.” You can pay the price up front to have a well-drafted, broad patent that accurately covers your invention and potential design-arounds. Or, you can pay the price later when your patent application never gets granted, when your patent is too narrow to enforce, or when your patent gets invalidated when you try to enforce it.

    This is why attorneys and savvy business people alike always recommend using a skilled patent attorney to draft a patent application. And because it takes the time and detailed attention of a highly-skilled professional to draft a quality patent application, applying for a patent is expensive.

    Despite this, there are a number of aspects of a patent attorney’s job that are simple or repetitive enough to be automated. A number of artificial intelligence (AI) companies have built tools that automate these repetitive or simple tasks, purportedly saving patent attorneys time and, ergo saving inventors money. For example, Specifio®, a startup incubated by the legal innovation accelerator LexisNexis® Legal Tech, touts their software allows a patent attorney to “offload the rote parts of patent preparation.” Indeed, the founders of Specifio® were recently granted U.S. Patent No. 10,417,341 for “Systems and methods for using machine learning and rules-based algorithms to create a patent specification based on human-provided patent claims such that the patent specification is created without human intervention” (say that 10 times fast!). Another AI patent company, Turbopatent®, similarly offers software described on their website as designed to help to “limit the tedious drafting tasks” and help patent practitioners “focus on high-value work” (I think this is a brilliant marketing strategy because every patent attorney I know has bemoaned not getting to focus more time and energy on “lawyer work,” as opposed to other more mundane tasks).

    However, in my own *admittedly armchair* assessment, these solutions still fall far short of the real potential AI has to revolutionize the patent industry. A lot of the savings of automation are already reflected in the market price of a patent application because patent attorneys, being inventive themselves, have found their own ways to reduce time on these tasks. Thus, the additional cost of the software is not sufficiently offset by time savings. Indeed, my firm did an assessment of one patent automation company’s products and found that, in comparing the cost of the software to the amount of time saved, there would be ZERO net savings we could pass on to inventors.

    Unfortunately, after all the mundane tasks are automated or otherwise streamlined, there still remains the bulk of the arduous and time-consuming tasks associated with preparing a legally and technically sound patent application. This is where we should be focusing technological development.

    The reason current efforts to revolutionize the patent drafting and prosecution industry are falling short is because the industry seems to have lost touch with a foundational concept. In a patent attorney’s world, an invention is a set of words in the form of a claim. Those words set the bounds of what the invention is. But this is simply an effect of the massive bureaucracy we deal with on a daily basis (i.e., governments).

    In the real, tangible world, an invention is a thing. So if we want to build AI tools that truly revolutionize the patent industry, “[w]e must think things, not words, or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true.” (Thank you for that famous and prescient wisdom, Justice Holmes). In other words, current AI patent drafting solutions focus too much on the words used to describe an invention. The right solutions will focus on the invention itself. 

    I envision one such solution looking something like this: An invention disclosure is input into a program. The program performs a search based on the disclosure to identify inventive concepts. Perhaps there is some back-and-forth with the inventor to get missing information and hone in on the core inventive concepts. Simultaneously, the inventor works with an attorney to identify the strategy best suited to the inventor’s goals (although this is something I also believe a computer can do). When the inventive concepts and strategy are identified, the program drafts claims and a specification, and perhaps even drawings, for a patent application. After all this is done, the inventor reviews the application draft for technical accuracy and the attorney reviews for legal (and maybe technical) accuracy. Any changes made to the application by the inventor or attorney are fed back into the program so the program can learn, and the application is filed.

    And I believe all that can be done for under $1,000.

    But do the tools currently exist to build the right solutions? In my estimation, while there are some technological hurdles that put this problem at or just beyond the cutting edge, the real issue is building the right team. What does that team look like? Well, let’s have lunch and talk about it.







    About the Firm...

    Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.


    Top Blog Articles

    1. Cheapest Way To Get A Patent

    2. How Long Does It Take To Get A Trademark?

    3. Why Are Patents Important?

    Miller IP Law


    Want to chat more about this topic, or got a burning question? Take advantage of instant chat and send us a direct message

     

    Miller IP Law

    Find Us On LinkedIn

    About Our Firm…

    Miller IP Law is a group of attorney's, based out of Mountain Green, Utah, who are excited to help you build your business and further innovate market places and economies. Please consider looking at our services, billed at flat rate, and be sure to grab a free strategy session to meet with us!

    Start Your Journey

     

     

    Get weekly stories and information about protecting intellectual property with our e-mail Newsletter today!



    Need To Get In Touch With Us?➡

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    Flat Fee Pricing

    Straightforward for Patents and Trademarks



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    What does a patent cost?

    Sometimes, the simplest questions require the most complex answers. For example, the question “How much does a patent cost?” is actually quite difficult to answer because it depends upon what technology is involved in the invention, attorney fees, and the novelty/uniqueness of the invention.

    Here is an estimate of the likely costs you will face on the road to getting a patent for your invention:

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    About the Firm...

    Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.


    Top Blog Articles

    1. Cheapest Way To Get A Patent

    2. How Long Does It Take To Get A Trademark?

    3. Why Are Patents Important?

    Miller IP Law


    Want to chat more about this topic, or got a burning question? Take advantage of instant chat and send us a direct message

     

    Miller IP Law

    Find Us On LinkedIn

    About Our Firm…

    Miller IP Law is a group of attorney's, based out of Mountain Green, Utah, who are excited to help you build your business and further innovate market places and economies. Please consider looking at our services, billed at flat rate, and be sure to grab a free strategy session to meet with us!

    Start Your Journey

     

     

    Get weekly stories and information about protecting intellectual property with our e-mail Newsletter today!



    Need To Get In Touch With Us?➡

    Schedule A Free Strategy Session Today…

    Miller IP Law




    Flat Fee Pricing

    Straightforward for Patents and Trademarks



    Miller IP Law

    Patent Application

    Miller IP Law

    Trademark Application

    Miller IP Law

    Copyright Application

    Read more →

    Cheapest way to get a patent

    Small business, or solo inventor and are on a limited budget, how can you get a cheap patent?

     

     

    Do-It-Yourself (Draft it and File it Yourself)

    United States Patent and Trademark Office (USPTO) is designed to allow individuals to get a patent themselves without the help of a lawyer. You can write the patent yourself, submit it and pay the filing fees.

    Is this method free? No. You will always have to pay the filing fees to get your patent examined and then pay the issue fee once it is allowed.

    Cost of Filing It Yourself

    The fees range between $430 and $860 depending on if you are a micro entity or a small entity. Although it is not free to file yourself, you will still be getting a cheaper patent.

    Still To Expensive? Do A Provisional Patent Application Yourself?

    If $430 to $860 is still too expensive, you can file what is called a provisional patent application. A provisional patent is a placeholder patent application that allows you to claim patent pending status for up to one year and then decide whether to invest the larger amount for a full patent application (non-provisional patent application) that will be examined and can become an issued patent application.

    Cost of Filing It Yourself

    The cost to file a provisional patent application yourself is between $70 to $140.

    The downside to the provisional patent application is that at the end of the one year time period you will lose all patent rights to the invention if you do not file the non-provisional patent application. One strategy startups with a limited budget use is to file the provisional patent themselves for the $70-$140, test the product/invention out in the market during that year period to see if it is valuable, and if it is, have a patent attorney prepare the non-provisional patent application.

    Fiverr & Other Low Cost Options

    The short answer: You are better to do it yourself.

    If you can't do it yourself but can not afford and attorney, you can use other low cost services such as Fiverr where others will prepare the application for you (and sometimes file it for you even though that is illegal). While this is an option, doing it yourself it typically the better option. The individuals offering their services on these types of platforms typically only take a few minutes to prepare the application, do a worse job then you would have yourself, and give you the false sense of security that it was done right.

    If Budgets Allow - The Better Option Is to Use an Attorney

    If the budget allows, it is recommended to use an experienced patent attorney to prepare and file your provisional or non-provisional patent application. They can help you avoid issues down the road and draft a patent application that is more valuable.

    The Cost of An Attorney

     The typical cost to hire an attorney to prepare and file a provisional patent application is $1750-$3000 and a non-provisional patent application is $5750-$10,000. The majority of what you are paying for is the attorney's time and experience in preparing a patent application that will fully cover your invention and reduce the likelihood of a rejection(s) during examination. 

    Whichever option your choose, good luck along your inventive journey! 







    About the Firm...

    Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.


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    About Our Firm…

    Miller IP Law is a group of attorney's, based out of Mountain Green, Utah, who are excited to help you build your business and further innovate market places and economies. Please consider looking at our services, billed at flat rate, and be sure to grab a free strategy session to meet with us!

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    Flat Fee Pricing

    Straightforward for Patents and Trademarks



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    Patent Application

    Miller IP Law

    Trademark Application

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    Copyright Application

    Read more →

    Can I have more than one invention per patent application? (What is a restriction requirement?)

    Miller IP Law

    A common question startups have regarding patents is "Can I put more than one invention into my patent application?"

    The simple answer is "yes". The less simple answer is "yes - but the patent examiner may ask you to split them into separate patent applications later".When you file your patent application you have to pay the US Patent and Trademark Office (USPTO) a "filing fee", a "search fee" and an "examination fee". The total of all three of these fees is currently $400 for inventors who can qualify as a micro entity status. If you have more than one invention in your application, an Examiner at the USPTO will likely ask you to separate them out because you only paid the USPTO one fee for one search and one examination. Each different invention needs to have it's own search and examination done.

    Why squeeze multiple inventions into just one application?

    The main reason people want to add multiple inventions into a single patent application is cost savings. If you have multiple inventions, one cost-saving strategy is to combine as many inventions as you can into a single application and pay just one fee filing fee (you will still have to pay for attorney time). You can go back later and separate them out as needed or wait for the examiner to force you to separate them. * Note, if the inventions are really all the same invention with different variations then you can and should file the variations in a single application. THE DOWNSIDE TO MULTIPLE INVENTIONS IN A SINGLE APPLICATION?

    Miller IP Law

    There are risks and drawbacks to combining multiple inventions into the same patent application. One drawback is that all the inventions filed in the same application will be given the same expiration date. If you want to extend the life of some of the inventions you stagger their filings. Another potential drawback is that patents and patent applications can be very valuable assets to a company. If you have just one patent or patent application, some investors or potential business partners may not value that as much as if you had multiple patents or patent applications. A new start-up company could potentially get more funding if they had multiple patents surrounding their inventions versus just having filed a single patent application.







    About the Firm...

    Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.


    Top Blog Articles

    1. Cheapest Way To Get A Patent

    2. How Long Does It Take To Get A Trademark?

    3. Why Are Patents Important?

    Miller IP Law


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    About Our Firm…

    Miller IP Law is a group of attorney's, based out of Mountain Green, Utah, who are excited to help you build your business and further innovate market places and economies. Please consider looking at our services, billed at flat rate, and be sure to grab a free strategy session to meet with us!

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    Flat Fee Pricing

    Straightforward for Patents and Trademarks



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    Patent Application

    Miller IP Law

    Trademark Application

    Miller IP Law

    Copyright Application

    Read more →

    How to mark a product as patent pending

    Miller IP Law

    Patent Pending

    An individual who wants the benefit of marking an invention or product as “Patent Pending” must make a good faith effort to ensure that the articles are properly and consistently marked. Marking an invention or product as "Patent Pending" alerts the public that your invention or product may soon be patent protected and that once the patent issues, you have the right to initiate a patent infringement lawsuit infringers. An individual or business may mark the invention or product with “Patent Pending” once a patent application has been filed with the Patent Office.

    Miller IP Law

    *Note that it is a criminal offense to mark or offer to sell an article as “Patent Pending,” when an application for the invention has not yet been filed. In deciding how to mark an invention or product as “Patent Pending”, an individual should be mindful of the purpose of the mark and use common sense. For example, patent markings may be etched, molded, or printed onto the invention or product or if you are unable directly mark the invention or product itself due to “the character of the article”, the mark may be placed on the packaging of the invention or product. The packaging may include a box enclosing the invention or product or marketing and promotional materials. In the event that label or marks are not seen or fall off of the invention or product, the courts follow the “rule of reason” approach, where constructive notice is given when the patent applicant consistently marks substantially all of the articles.

    Once a patent has been issued, you become a patentee rather than a patent applicant.

    Miller IP Law

    The law also allows patented invention or product to be marked “virtually” by using the internet. In order to comply with the virtual marking requirements, the individual or company must mark the invention or product itself (or the invention or product packaging if it is not possible to mark the invention or product) with the word “patent” or “pat.” along with a freely-accessible internet address where anyone can find the patent numbers associated with the patented invention or product. An advantage of virtual markings may be the aesthetic appeal. Additionally, virtual markings may offer increased ease of updating and identifying later issued patents relating to the invention or product without having to remark the invention or product individually because the revisions may only need to be made to the website page.







    About the Firm...

    Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.


    Top Blog Articles

    1. Cheapest Way To Get A Patent

    2. How Long Does It Take To Get A Trademark?

    3. Why Are Patents Important?

    Miller IP Law


    Want to chat more about this topic, or got a burning question? Take advantage of instant chat and send us a direct message

     

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    About Our Firm…

    Miller IP Law is a group of attorney's, based out of Mountain Green, Utah, who are excited to help you build your business and further innovate market places and economies. Please consider looking at our services, billed at flat rate, and be sure to grab a free strategy session to meet with us!

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    Flat Fee Pricing

    Straightforward for Patents and Trademarks



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    Patent Application

    Miller IP Law

    Trademark Application

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    Copyright Application

    Read more →

    Patent Pending Explained

    Miller IP Law

    Patents that have been filed but not yet approved have patent pending status.

    You can use your pending patent to make, sell, and license the product during this time. Patent pending is the term used to describe a patent application that has been filed with the patent office, but has not issued as a patent. Patent pending indicates that the inventor is pursuing protection, but the scope of protection, or whether a invention is patentable, is still undetermined.

    Put others on notice

    Marking an invention “patent pending” puts the public on notice that the underlying product may be protected. Any individual or business who has a non-expired provisional application or a pending non-provisional application may indicate that the related invention is “patent pending”.

    Miller IP Law

    Depending on how you file your patent application, pending patent applications may publish from the United States Patent and Trademark Office and become publicly available or may be held in confidence until issuance.

    Can't see until issue.

    Depending on how you file your patent application, pending patent applications may publish from the The patent pending status does not protect the invention, and you can't sue for infringement if someone copies your idea. United States Patent and Trademark Office and become publicly available or may be held in confidence until issuance. You only get full legal protection for your invention once the USPTO approves the patent.

    Miller IP Law

    Once you receive approval for your patent application, you can take legal action against someone who copies your invention. If you have submitted a patent application and it is pending, you do have legal rights if someone else tries to file a patent application for something that is the same or very similar. The USPTO looks at the date that each patent application was filed and gives priority to the patent application with the earlier filing date. The filing date plays a major role in obtaining a patent, especially if other people try to patent or steal it before you can patent it. It can be crucial to start the filing process as soon reasonably possible and avoid publicly disclosing your idea until you have patent-pending status. Patent pending status starts when you file an application and ends when you abandon a patent application or receive approval of your patent.

    Why is Patent Pending Important?

    Miller IP Law

    Patent pending may deter other companies from trying to copy your invention. Most companies will not invest the time or money to develop a product that could receive a patent in the near future. Patent pending is important Using patent pending is acceptable on the exact invention that is included in the application, but if you start changing your invention, you may no longer be covered under patent laws unless you submit a new application.

    When not to use patent pending?

    You should not claim the patent pending status until you have submitted a patent application at the USPTO. Once you have submitted the patent application, it is up to you whether mark your product with "patent pending". Some businesses or individuals may their product as "patent pending" it to inform the public that a patent application is on file with the USPTO for the invention. If you choose not to go through the patent filing process, you should never use "patent pending" on any product materials or the product itself.

    When to use patent pending

    Miller IP Law

    If you have a patent pending serial number, you can begin using it on packaging, marketing materials, ad campaigns, and other outlets. Marking a product "patent pending" will help alert competitors that you are in the process of getting a patent on your product.

    If someone else tries to sell or distribute a similar or identical product, you can take legal action once the patent has been granted. Product and materials that list the patent pending serial number as evidence can help make a stronger case against an infringer, since it clearly show that you indicated patent pending status and that the patent was in process. If you can use your materials or product to prove that the other party willfully infringed on your patent, the infringement damages may be tripled. You may also be able to get an injunction to stop the infringer from producing the product until the patent process is complete. If the patent does get approved, the holder can sue for damages for up to 18 months after the application is filed. These risks make it less likely for others to copy an idea when it holds the patent pending status. However, in most cases it is difficult to take any type of legal action until you hold an approved patent. Misrepresenting a patent pending status could put you at legal risk (especially if your patent is denied), so when using the patent pending status, make sure to clearly state that the patent application is pending. Do not confuse consumers by making it look like your product holds a patent when it is actually pending.

    What Happens When You Have a Patent Pending?

    Miller IP Law

    If anyone else wants to produce something similar, they will have to pay you to license the rights to it, so the potential for earnings will increase if your invention is popular.







    About the Firm...

    Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.


    Top Blog Articles

    1. Cheapest Way To Get A Patent

    2. How Long Does It Take To Get A Trademark?

    3. Why Are Patents Important?

    Miller IP Law


    Want to chat more about this topic, or got a burning question? Take advantage of instant chat and send us a direct message

     

    Miller IP Law

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    About Our Firm…

    Miller IP Law is a group of attorney's, based out of Mountain Green, Utah, who are excited to help you build your business and further innovate market places and economies. Please consider looking at our services, billed at flat rate, and be sure to grab a free strategy session to meet with us!

    Start Your Journey

     

     

    Get weekly stories and information about protecting intellectual property with our e-mail Newsletter today!



    Need To Get In Touch With Us?➡

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    Flat Fee Pricing

    Straightforward for Patents and Trademarks



    Miller IP Law

    Patent Application

    Miller IP Law

    Trademark Application

    Miller IP Law

    Copyright Application

    Read more →

    Do I need to do a patent search?

    When should I do a patent search?

    Do I need to do a patent search? If so, where do I start?

    A reasonable question but one that does not have a definitively answer that applies across the board.

    Deciding when to get a patent search largely depends on the purpose of the search. Typically, inventors will seek a patent search once they have an invention that they think is worth patenting. Sometimes inventors will not have an invention that is not fully fleshed out but they want to get a sense of the patent landscape to determine whether it even makes sense to continue the project and whether there may be some available space that they could target.

    Starting With Why

    Do I need to do a patent search? If so, where do I start?

    These are two of the main purposes for getting a patent search, so the first step is to determine why it is that you want a patent search. 

    If you are looking for a patent search that will give you an idea about the inventive landscape and whether any inventive space exists, then you will want to do the patent search early in the process.

    To start, you should do an initial patent search yourself to inform yourself first. However, there is a real risk associated with only relying on a search performed by yourself and not a patent attorney. Still, doing your own search is free, except for the investment of time, so it is a logical place to start.

    These are two of the main purposes for getting a patent search, so the first step is to determine why it is that you want a patent search. 

    Imitation Is The Sincerest Form Of Infringement

    Do I need to do a patent search? If so, where do I start?

    Typically, an inventor wants a search to determine whether the invention they have come up with is one that is likely to be patented. 

    For small startups and solo inventors, to start down the patent path, I recommend filing a provisional patent application. You can either do a search before the filing of a provisional patent application or after the filing of the provisional patent application but before the filing of the nonprovisional patent application. 

    The cost of a patent search and patentability determination by a patent attorney can range from $1,000 to $3,000, depending upon the technology involved and the level of analysis provided. To prepare and file a provisional patent the cost is typically between $2,000 to $3,000, depending upon the technology and the complexity.

    To Patent or to Search?

    Do I need to do a patent search? If so, where do I start?

    For inventors who find the cost of a patent search and filing a provisional patent application, I would recommend filing the provisional patent application to get the patent application process rolling and to obtain “patent pending” status. As you are traveling along the road to a nonprovisional patent application, you can then have a search done as well.

    For technology or product areas that are very crowded with lots of similar inventions (such as every doctor wanting to patent a golf club) performing a search prior to filing even a provisional patent application may be recommended.

    Does it Make Dollars or Cents?

    Do I need to do a patent search? If so, where do I start?

    The reason not everyone chooses to do a patent search first is because the cost of a search can be a significant investment, even if the cost of the patent search is less than the cost of preparing and filing a provisional patent application.  

    The primary benefit of a provisional patent application is to record your invention with the patent office to establish the date of your invention. Some will choose to file a provisional patent application as quickly as possible and not wait for the completion of a patent search in order to establish as early of date of invention as possible.

    Note, provisional patent applications are never examined by the Patent Office. For startups with a reasonable budget, the startups may choose to have a search performed and file a nonprovisional patent application to get the examination queue.

    Optimal versus practical

    Do I need to do a patent search? If so, where do I start?

    So far the answer as to whether to have a patent search performed is based on the typical decision by inventors, not the optimal decision.

    Doing a patent search first before any patent application is filed is always the best course to follow if funds are available.  By doing a patent search and obtaining guidance from a patent attorney, you will be able to determine whether it makes sense to move forward with a patent application and learn what features to focus your patent application on.  In an ideal world, everyone would start with a patent search and then file a provisional patent application or a nonprovisional patent application depending on what stage their invention has progressed to.

    A patent search first enables startups and inventors to explain, from the earliest stages, their invention in a way that accentuates and focuses on the novel features of the invention and the important differences that their invention has over prior inventions (prior art).

    There is no doubt that doing a patent search prior to filing any patent application is the best approach. Of course, a lack of funding can necessitate different choices. For startups and inventors whose budgets require cutting corners, the best fall back plan is to do as much searching on their own and learn as much as they can about the patent process.







    About the Firm...

    Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.


    Top Blog Articles

    1. Cheapest Way To Get A Patent

    2. How Long Does It Take To Get A Trademark?

    3. Why Are Patents Important?

    Miller IP Law


    Want to chat more about this topic, or got a burning question? Take advantage of instant chat and send us a direct message

     

    Miller IP Law

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    About Our Firm…

    Miller IP Law is a group of attorney's, based out of Mountain Green, Utah, who are excited to help you build your business and further innovate market places and economies. Please consider looking at our services, billed at flat rate, and be sure to grab a free strategy session to meet with us!

    Start Your Journey

     

     

    Get weekly stories and information about protecting intellectual property with our e-mail Newsletter today!



    Need To Get In Touch With Us?➡

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    Flat Fee Pricing

    Straightforward for Patents and Trademarks



    Miller IP Law

    Patent Application

    Miller IP Law

    Trademark Application

    Miller IP Law

    Copyright Application

    Read more →

    What to do if my patent application gets rejected?

    Dealing with rejection is part of the patent process.

    Miller IP Law

     

    The Examiner is not rejecting you or your invention. The Examiner is just the way you claim your invention, so do not take the rejection personally. At the end of every patent is a numbered list of sentences/paragraphs called claims. The claims describe what part of the invention you claim is your intellectual property. A claim defines exactly what the inventor owns (like a fence around a piece of property) and lets others know when they are trespassing on your intellectual property.

    The art of the deal.

    Miller IP Law

    The patent process is a negotiation. Typically, patent attorneys initially file claims that are broader than what the actual invention covers to reach for as broad of coverage for your invention as reasonably possible. The examiner will almost always reject the first set of claims and then work with the attorney to find reasonable middle ground.

    The Examiner will identify and apply the relevant prior art references (inventions available in the public domain before your patent application was filed) to each of the features of the claims in your patent application as part of the Office action. The Examiner will detail why the Examiner believes the features in the claims are found in the cited prior art. Do not take it personally. Once an Office action has been received, it is now up to you/your patent attorney to respond in one of two ways:

    Argue why your invention is different.

    Miller IP Law

    If the Examiner is mischaracterizing the prior art, interpreting it incorrectly or too broadly, or is otherwise misapplying the prior art references, you can argue how certain claim limitations/features are not found in the cited prior art reference. The Examiner will then review your arguments and either agree with them and find new references, agree with them and allow the patent application, or disagree with the arguments and maintain the rejections.

    Clarify the features of the claim (Amendments).

    Miller IP Law

    In addition or as an alternative to making arguments, you may also amend or adjust your claims clarify your invention. The adjustments may include limiting the scope of your invention or adding in new features to your claims that are not disclosed or suggested in the cited prior art references.

    Convincing is the Key

    Miller IP Law

    The goal of the Office action response is to convince the Examiner to allow your claims through a combination of claim amendments and skillful arguments that point out how certain claim recitations are absent in the cited prior art. It may take more than one response to different Office actions to reach the middle ground where your patent application may be allowed, but typically if you persevere you can reach the acceptable middle ground to get your patent application allowed.







    About the Firm...

    Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.


    Top Blog Articles

    1. Cheapest Way To Get A Patent

    2. How Long Does It Take To Get A Trademark?

    3. Why Are Patents Important?

    Miller IP Law


    Want to chat more about this topic, or got a burning question? Take advantage of instant chat and send us a direct message

     

    Miller IP Law

    Find Us On LinkedIn

    About Our Firm…

    Miller IP Law is a group of attorney's, based out of Mountain Green, Utah, who are excited to help you build your business and further innovate market places and economies. Please consider looking at our services, billed at flat rate, and be sure to grab a free strategy session to meet with us!

    Start Your Journey

     

     

    Get weekly stories and information about protecting intellectual property with our e-mail Newsletter today!



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    Flat Fee Pricing

    Straightforward for Patents and Trademarks



    Miller IP Law

    Patent Application

    Miller IP Law

    Trademark Application

    Miller IP Law

    Copyright Application

    Read more →

    How long & how much to get a patent?

    How long & how much to get a patent?

    Miller IP Law

    The short answer is it takes about 22-30 months and costs about $12,000-$14,000. Before you abandon all hope, read below to find out more about the patent process. According to the United States Patent and Trademark Office (USPTO), the average time it takes to get a patent is about 25 months. If you want to expedite the process you can pay an extra fee ($1000-$4000) to the USPTO to get prioritized examination utility patents you can cut the time down to 6 to 12 months. A good patent attorney can help you with the process from start to finish, including:

    Patent Searching & Analysis (1-2 WEEKS & $500)

    Miller IP Law

    This step is optional, but it can help you understand what other inventions are out there, what may be novel/unique about your invention and if you may be infringing some else's patent.

    Prepare a Patent Application (2-4 Weeks and $5500)

    Miller IP Law

    If the patent search turns up nothing, you're ready to draft a patent application. It usually takes an attorney 2 to 4 weeks depending on the attorney's workload, the complexity of the invention, how much information is provided from the applicant, and any changes necessary.

    Office Actions (18 MONTHS & $3500-$5000)

    An office action is a rejection from the patent office indicating that your patent is not patentable because it is not novel or is obvious compared to previous inventions. As life is full of rejections, don't get too worried if your patent application gets rejected. Typically a patent application gets 2-3 Office actions before it gets allowed. This is because the Examiner at the USPTO may require you to identifying how your invention is different, clarify the scope of your invention, and/or change how many inventive features you are claiming. Each Office action you takes 2-3 months to receive from the Examiner and 1 month to respond.

    Abandonment or Allowance (3 months & $0-$800))

    Miller IP Law

    After you have gone a few rounds with the Office action you typically get a pretty good idea if your patent application will be allowable you should be abandoned. If you abandoned your patent application, it doesn't cost you anything. If your patent application gets allowed, it usually takes a couple months once you get the notice and cost about $800.

    Maintenance Fees (3.5 years/$800 - 7.5 years/$1800 - 11.5 years/$3,700)

    Miller IP Law

    If your patent application gets allowed and issue into a patent, then the USPTO charges maintenance fees for up to 11.5 years after issues if you want to keep your patent active. You pay the first fee of $800 at 3.5 years after the patent issues, the second fee of $1800 at 7.5 years, and the third fee of $3,700 at 11.5 years. Depending on the patent and the invention you may decide to keep the patent active the entire length of the patent or let it go abandon once it is no longer valuable.

    Why does it take so long and cost so much?

    At any given time, the USPTO has hundreds of thousands of patent applications being examined. In 2012, 542,815 applications were filed. As of 2014, there were only 7,966 examiners and a backlog of 604,692 patent applications. With the amount of examination required, this causes longer wait times. High-traffic fields such as computer software have even longer wait times. Also, some applicants will fight the USPTO's decision, further slowing the process. Patents are expensive. Depending on the invention and the business they can be a great investment or a waste of time and money. To help you understand if a patent is right for your business/invention, talk to an experienced patent attorney.







    About the Firm...

    Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.


    Top Blog Articles

    1. Cheapest Way To Get A Patent

    2. How Long Does It Take To Get A Trademark?

    3. Why Are Patents Important?

    Miller IP Law


    Want to chat more about this topic, or got a burning question? Take advantage of instant chat and send us a direct message

     

    Miller IP Law

    Find Us On LinkedIn

    About Our Firm…

    Miller IP Law is a group of attorney's, based out of Mountain Green, Utah, who are excited to help you build your business and further innovate market places and economies. Please consider looking at our services, billed at flat rate, and be sure to grab a free strategy session to meet with us!

    Start Your Journey

     

     

    Get weekly stories and information about protecting intellectual property with our e-mail Newsletter today!



    Need To Get In Touch With Us?➡

    Schedule A Free Strategy Session Today…

    Miller IP Law




    Flat Fee Pricing

    Straightforward for Patents and Trademarks



    Miller IP Law

    Patent Application

    Miller IP Law

    Trademark Application

    Miller IP Law

    Copyright Application

    Read more →

    How to do an initial patent search myself

    Miller IP Law

    Inventors and entrepreneurs who are looking to cut costs often want to do their own patent search.

    Doing an initial patent can be a great use of time to determine what other relevant inventions are out there. However, inventors need to be careful. It is common for inventors to do a patent search and find nothing even when there are things would be found by a patent attorney. While it makes sense to do your own initial search first, be careful relying solely on your own search when spending thousands of dollars to ultimately obtain a patent. This article should not be interpreted as recommending that inventors forgo a professional patent search. There is no comparison between a patent search done by an inventor and a patent search done by a patent attorney.

    REASONS TO DO YOU OWN SEARCH

    THERE ARE THREE MAIN REASONS WHY AN INVENTOR SHOULD SPEND TIME SEARCHING AT PRIOR ART: (1) by spending time patent searching you will become familiar with the prior art. (2) patent searches help you identify invention already out in the public domain so you can focus on what makes your invention unique. (3) if you can find something that is too close on your own invention, you save time and money by moving on to your invention/project.

    If you are going to do your own searching and find relevant patents, you will need a basis understanding of patent searching and the resources available for searching. The United States Patent and Trademark Office (USPTO) patent search page is a great place to start. You can easily find a lot of free information at the USPTO patent search page. The USPTO website also includes an excellent Help Section to learn how to use the online search features. Below are some patent searching strategies and some free resources to help you with your search.

    Free Patents Online

    Miller IP Law

     

    Free Patents Online is faster and often provides better search results than the USPTO site. Often you can do an initial search using the USPTO patent search engine and then go to Free Patents Online to download PDFs of your results and to access related patents. Using the advantages of both the USPTO and Free Patents Online sites can make your searching easier and more robust.

    Google Patent Search

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    Google Patent Search has a user-friendly interface that makes it each to do patent searching. Some of the searching field available are limited compared to the USPTO and Free Patents Online tools but if you are looking to do a broad search then Google Patent Search is hard to beat.

    If you want to do more specific searches with specific limitations then use the USPTO and Free Patents Online tools. Note, the most recent patents are not always available on Google Patent Search. The Google database covers patents that are issued all the way back to US Patent No. 1 but there can be a short lag in the most recent published patent applications and what is available in the Google Patent Search database.

    Advanced Search Page

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    When using the USPTO searching tools, using the Advanced Search Page and searching in the specification fields can improve your search results. Want to search for titanium golf clubs in the specification of a patent? Use the search term SPEC/”titanium golf clubs”. Note, the USPTO searching tools only allow for doing full text searching back to 1976. If you are in the high-tech industry this is likely not an issue, but for mechanical or simple inventions you may want to use Google Patent Search to go back farther than 1976. Depending on the type of invention and the search terms used, a patent search may yield hundreds or even thousands of related patents. If, for example, you search “SPEC/shoes”, you will find hundreds of patents that use this word in the specification. What should you do now? If you find too many patents in your initial search then revised the search terms you are using and/or add additional search terms to narrow your search. When you have 40 or less results then it is worthwhile spending a couple minutes per result to review the patents/patent applications. The key is to start off broad and then narrow your search to get relevant results.

    Choose your words carefully

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    When doing a patent search using any of the free tools, what you are really doing is a keyword search. When you only get 10 search results for “titanium golf clubs,” it may be because that isn’t the common or proper way that patent attorneys that particular feature set. Maybe the correct keyword is "metal golf clubs" or "Ti golf clubs". Make sure not to focus on a single keyword when describing your invention that overlooks other possibilities.

    Along the way, as you find relevant patents/patent applications, keep track of the numbers and identify the US classification that relates to the type of invention you are searching. You can narrow broad searches using the one or more classifications at the Advanced Search Page of the USPTO patent search tool.

    Patent Classifications

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    For example, the classification 273/173 seems relevant to the area of materials used for golf club heads. Patents within this classification are potentially highly relevant to your invention. You can narrow your search from hundreds or thousand of results to just a few results if you search “CCL/273/173 and SPEC/titanium golf club head”. Becoming familiar with the intricacies of patent searching takes time. There are a number of fields that are searchable through the Advanced Search Page, which provides you a number of different ways to search for an invention. It is not uncommon for inventors to do a search and find nothing. Every time I do a patent search I find patents/patent applications that were missed by the inventor. Sometimes the patents are tangentially related. Other times the patents are close or exactly what the inventor has invented.

    Class isn't everything

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    While the classification system is helpful, only after you have a broad idea of all possible descriptions can you meaningfully use the classification system. The reason inventors often do not find the most relevant patents is because they fail to follow up abroad search with a classification search.

    Remember that it is critically important to figure out what terms used to call different things are called. You need to use different names and labels. Is it a pencil, a pen, a writing utensil, a writing tool, a drawing apparatus, or something else? You will find that patent attorneys typically call certain features by a select few names. Once you figure out what the industry calls something, you are far more likely to find relevant patents. With these resources and basic strategies, you are now ready to do you first patent search, but remember that there is no substitute for having a patent attorney do a search to better identify relevant results help you understand the patent field for your invention.







    About the Firm...

    Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.


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    Flat Fee Pricing

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    Patent Application

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    Patents v. Opensource

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    The open source movement started as a simple idea back in 1998 in the digital mecca of Palo Alto, California.

    From there it grew and evolved into a manifesto.

    The Manifesto

    Whatever you do or make, give it away for free so others can build with it and make it better. Proponents of open source argue that by giving ideas, products, and code away it drives innovations by means of global collaboration, which is good for any industry

    Tesla Motors

    A prime example of open source is what Tesla Motors did in 2014. The electric car pioneer decided it was in the best interest of the electric car industry to release all their patents to the public. “Tesla Motors was created to accelerate the advent of sustainable transport. If we clear a path to the creation of compelling electric vehicles, but then lay intellectual property landmines behind us to inhibit others, we are acting in a manner contrary to that goal. Tesla will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology.”

    Collaboration or Competition

    Some disagree with the open source movement. They argue that competition, not collaboration, drives innovation. It was competition that sparked the space race and put a man on the moon. While open source might be good for the industry, it’s bad for business. When the ideas of a business are protected it can leverage those ideas to grow. If those software is open sourced, the rules of supply and demand make it hard to profit from those innovations. The battle of patents versus open source is likely to continue for a long time. Progress and innovation are the ultimate goals for both sides. Both sides just have polarizing ideologies.

    Control

    Miller IP Law

    A patent gives its holder the right to exclude others from making, using, and selling the claimed invention. Patent rights give a patent holder control over who uses his/her invention. The basic idea behind distributing software under an Open Source license is that anyone should be able to view and use the source code of the computer program and modify the source code for his/her own purposes. The author of the software program must decide to make the source code available to others. Anyone can modify the source code without obtaining permission from the author. Distributing software under an Open Source license affects how the creator of the software use his patent rights but does not affect whether he/she can apply for patent protection. Releasing software under an open source license or incorporating the software in a proprietary product may grant certain patent licenses to people who receive the software. The patent owner cannot control who receiver the open source software or what they will do with it.

    Defining an Open Source License

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    You can see the large number of different versions identified as open source licenses at http://www.opensource.org/licenses, each has its own quirks. One of the most popular open source licenses is the Gnu Public License (the GPL). For a copy of the GPL license you can go to http://www.gnu.org/copyleft/gpl.html. What is an open source license? The GPL not only requires that source code be viewable and usable but also requires that any software that is a derivative work of the GPL software also be distributed under the GPL. When an original author releases his software under the GPL, he give license of his copyrights to those who receive the software to copy, distribute, and produce derivative works of the software, provided that they then release the software and derivative works of the software under the GPL to make the source code of the software and the derivative works available to others. Derivative works are modifications of the software and as any software that links to the GPL software. The GPL software infects all software that links to it and forces that software also to be distributed under the GPL. Most commercial software developers do not use GPL software because doing so would force distribution of their own source code for commercial product they are selling.

    Obtain Patent for Open Source Software?

    Miller IP Law

    If a company plans to distribute its software under the GPL, does it make sense to obtain patent protection? Open Source licenses do not bar a software author from obtaining patent protection nor does the GPL bar a programmer from including his patented features when he modifies someone else’s software previously distributed under the GPL. The uses to which patent rights can be enforced are severely restricted when the software with the patented innovations distributed under the GPL. The GPL license states: “Any free program is threatened constantly by software patents. We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone’s free use or not licensed at all.” An author or modifier who distributes software under the GPL cannot assert his patent rights against subsequent users and redistributors of the GPL software. Why then, would anyone want to obtain a patent on an invention that is going to be distributed under the GPL? The author may plan to license the patent to others to produce a revenue stream. The author may want to assert his patent rights against redistributors who do not conform to the GPL license terms. The author may want to have patent rights to use as an offensive or defensive weapon against infringers who are not using the GPL software. The author may plan to also distribute a non-GPL version of the software. While the author may not be able to use his patent rights against people who receive and redistribute his GPL software, the author can use these rights against his competitor who sells a competing product that incorporates the invention that is not a derivative work of the author’s original code. The GPL only precludes the patent holder from asserting his rights against people who are practicing the invention by using his GPL software. People who independently create other software are not subject to this implied license.

    Existing Licenses

    Miller IP Law

    What if the original author has a license from a third party for an invention included in the GPL software. For example, the original author may release software that incorporates an encryption technology covered by a patent licensed from a third party. If the original author of the GPL software has been granted the right to sublicense, he may be able to include the patented technology in his GPL software, since he can give a sublicense to the GPL users. Existing open source licenses Per the GPL requirements: "If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all."

    Limited Implied License

    Miller IP Law

    The users and modifiers of GPL software have an implied license to use patented inventions included in the GPL software. The users probably do not have a blanket license to use the invention in other circumstances. If a programmer who uses GPL software develops software that uses the patented invention without using any of the GPL software, the programmer does not have a license to use the invention in this manner.

    Outside the US

    Foreign Patents

    Miller IP Law

    Patents are granted on a country-by-country basis. The GPL states: "If the distribution and/or use of the Program are restricted in certain countries either by patents or by copyrighted interfaces, the original copyright holder who places the Program under this License may add an explicit geographical distribution limitation excluding those countries, so that distribution is permitted only in or among countries not thus excluded."

    Wrap Up

    As of the date of this article, there are no decided court cases interpreting the GPL and all disputes involving the GPL of which this author is aware have been settled out of court. However, it is only a matter of time before court cases involving the GPL make it through court. Software developers and corporate counsel should be aware of the risks involved in the GPL before making decisions concerning this license.







    About the Firm...

    Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.


    Top Blog Articles

    1. Cheapest Way To Get A Patent

    2. How Long Does It Take To Get A Trademark?

    3. Why Are Patents Important?

    Miller IP Law


    Want to chat more about this topic, or got a burning question? Take advantage of instant chat and send us a direct message

     

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    About Our Firm…

    Miller IP Law is a group of attorney's, based out of Mountain Green, Utah, who are excited to help you build your business and further innovate market places and economies. Please consider looking at our services, billed at flat rate, and be sure to grab a free strategy session to meet with us!

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    Flat Fee Pricing

    Straightforward for Patents and Trademarks



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    Patent Application

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    Is your invention worth patenting?

    Miller IP Law

    When you have a great idea, the very first thing you need to do is protect your idea before someone steals it, right?

    If you base your decision on TV shows or most patent firm websites, the answer is a resounding "Yes!"

    AN IDEA IS AN OPPORTUNITY

    You are far better to base your decision on business sense. When you first have an idea the answer to whether you should get is often "No--but maybe later." Patents are valuable tools, but they are not you single ticket to success. Before you invest thousands of dollars in securing patents, there are several steps you should take to ensure that it's a smart business move.

    VIABILITY FOR OPPORTUNITY

    As a small business owner in addition to a patent attorney, I've filed for patents for most of my products. However, filing for a patent shouldn't be your first to starting a business. So what should your first step be, then? Before you move forward with a patent, first evaluate your idea to determine if it is a viable business opportunity. You need to understand your product, your target market, and your competition the best you can. Don't just listen to your gut or feedback from friends or family. Do solid market research and map out your product development path. This may help you avoid spending the time, money and energy to secure a patent for your widget only to find out that there is no interest for it in the real-world marketplace. If it is a dead end, figure that out on the front end so you don't lose a significant amount of money. Before applying for a patent, consider the following factors:

    Patent research

    Miller IP Law

    Make sure your idea isn't infringing on someone else's patent. Conduct a preliminary patent search. This step will help ensure that your idea hasn't already been patented. You can either hire a patent attorney to do the search or at a minimum go to Google Patents and do a search yourself.

    Prototype

    Miller IP Law

    Develop a basic prototype to determine your product's functionality. A prototype ensures you have a close-to-final design when you do file for a patent. Making your product after you've filed a patent is difficult.

    Market research

    Miller IP Law

    Define your market and determine how large it is. If you target market is too small, your product may not be commercially viable.

    Cost to manufacture

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    Determine how much it will cost to manufacture your product. If it costs more to make than the market is willing to pay, your invention is just a money pit. Once you've determined there are no major roadblocks to success, then it is time to consider whether or not you need a patent. Many products in the market aren't patented or even patentable. Depending on the product or business, you may need a trademark or a copyright instead of a patent, both of which can be more cost effective. A patent is an exclusive right granted by a government to a patent owner for a limited period to stop others from making, using, or selling the patented product without the permission of the patent owner. A patent (like other types of property) can be bought, sold, and licensed. So why wouldn't everyone get a patent? If you have unlimited time and money, then there is no downside to getting a patent. If you are like 99% of the world, you have a limited amount of both time and money. Here are a few benefits and drawbacks to getting a patent:

    Benefits of patents Manufacturing and Sales

     

    If you're planning to manufacture and sell your product yourself, a patent can help you justify your investment in design, production, and marketing. If you are manufacturing and selling your product yourself, a patent can give you a comfortable of lead time over those who might knock of" your product. The patent may also give you the peace of mind that your invention is protected by law and can be enforced if someone infringes on your rights.

    Planning to License

    Miller IP Law

    If you're planning to manufacture and sell your product yourself, a patent can help you justify your investment in design, production, and marketing. If you are manufacturing and selling your product yourself, a patent can give you a comfortable of lead time over those who might knock of" your product. The patent may also give you the peace of mind that your invention is protected by law and can be enforced if someone infringes on your rights.

    Drawbacks of patents Limited to your ability to enforce it

    Miller IP Law

    While a patent can never hurt you, your patent protection is limited to the extent that you are able to enforce your patent. There are no patent police out there to ensure that your idea isn't stolen. If someone infringes on your patent, you'll need to spend time and money on legal fees to enforce your patent.

    Next Steps

    Once you have evaluated the opportunity, weighed the pros and cons of a patent, and decided to go move forward, find an expert who can help you. While anyone can technically write a patent (even you), a patent attorney knows the format requirements and the implications of using specific language and terms in a patent to provide the broadest coverage for your patent and avoid legal pitfalls. A patent attorney's job is to write patents. While most patent attorneys will recommend filing a patent, don't surrender your business decision to one advisor. It's important to understand that a patent can be a valuable tool, but there is no guarantee that your invention is patentable or that you still won't face direct competition.







    About the Firm...

    Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.


    Top Blog Articles

    1. Cheapest Way To Get A Patent

    2. How Long Does It Take To Get A Trademark?

    3. Why Are Patents Important?

    Miller IP Law


    Want to chat more about this topic, or got a burning question? Take advantage of instant chat and send us a direct message

     

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    About Our Firm…

    Miller IP Law is a group of attorney's, based out of Mountain Green, Utah, who are excited to help you build your business and further innovate market places and economies. Please consider looking at our services, billed at flat rate, and be sure to grab a free strategy session to meet with us!

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    Flat Fee Pricing

    Straightforward for Patents and Trademarks



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    Patent Application

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    What do investors look for in patents?

    When you run an early-stage tech start-up, thinking about how you’re going to raise funding is always on your mind.

    Miller IP Law

    But it can be very difficult to attract angel investors and venture capital (VC) funding because sophisticated investors do not invest unless they see a unique and valuable opportunity.

    An intellectual property strategy for early funding rounds

    VC firms understand the importance of IP in valuing a business. The appropriate IP protections enable businesses to maintain a competitive advantage, mitigate risks, and raise outside funding. Having been apart of several startup that have raised multi-million dollar funding rounds and worked with high-tech startups in a number of industries, there are a few things that VC firms typically want to see in an early-stage company's IP strategy. Learn what you need to prepare ahead of your discussions with early funding rounds (Angel, “Series A”, “Series B”). Of course, every investor is different and every deal is different, so your strategy may need some tweaks. Note, for later stage funding rounds the emphasis may be different where investors want to see a more mature IP portfolio that includes issued patents with meaningful scopes.

    What Investors Want To See In High-Tech Startups

    Investors are often look for unique innovations that can be protected and monetized. Investors typically assess a startup’s IP using the following criteria:

    You have a solid IP strategy

    Miller IP Law

    You need to know what IP your company needs to protect and how to protect that IP. Be able to explain how your IP fits into your overall business strategy, and how it will be monetized. A solid IP strategy that’s aligned with your business goals includes a forward-looking plan for capturing valuable IP in your industry.

    In one example, you plan might be to develop a market for your product, stop others from copying your product, and dominate the market. In another example, you plan might be to develop strategic partnerships and license your IP to other companies. As part of your plan make sure to have solid IP counsel to help execute your strategy. Investors know that a competently drafted patent application hold ups to scrutiny in a litigation context and IPR proceedings. If your invention is relevant in foreign markets, you will need to plan ahead to protect your international rights. There is a limited timeline for pursuing patent protection outside of the United States, so make sure to incorporate foreign protection into your plan.

    Your competition

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    How does your invention fits into the market relative to existing and potential competitors? IP protection demonstrates that you have thought about whether your product is viable in the market and how to distinguish your product in the market. IP assets are valuable independent of your business operations. IP assets work for you even when you don’t know it. For example, they reduce and deter industry competition. Would-be competitors will have to decide whether they want to risk infringing your IP by entering the market.

    IP assets also protect you if a competitor accuses you of patent infringement. You can use your IP assets for leverage to resolve an issue. Instead of costly litigation, you can enter a cross-license agreement to access to your competitor’s technology. Having thought through these scenarios and having a plan to leverage your IP in the face of competition will put investors at easy.

    Own It

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    When attract VCs, it’s critical to own the IP for your technology. You should be free of obligations to competitors, old employers, previous inventors, and other third parties. Document ownership of your patent applications and issued patents. Have strong employment agreements, invention disclosure records, non-disclosure agreements (NDAs), and non-compete agreements.

    Additionally, you should refrain from signing any ill-advised agreements that could compromise your IP ownership, such as agreements granting broad licenses to your collaborators. Want to show investors that you really have your act together? Show them a catalog of documents that establish ownership of all your company’s critical intellectual property.

    Strength of you IP

    Miller IP Law

    Investors are interested in the value and strength of your IP portfolio. Your patent applications must be able to hold up under close scrutiny. if your patent application claims are overly broad, your application may have a nearly endless number of prior art references cited against it. If your patent claims are too narrow, it may be easy for your competitors to design around your patent.

    What is your track record? Investors might be wary of businesses that have dropped a high number of applications — it suggests that the business’s IP may not actually be enforceable or that many of the applications may not end of issuing. If an investor is not experienced with patents they may just kick the tires during due diligence to make sure there are not major issues. If, however, you are going for a significant funding round, they will likely do an in depth review, so make sure you are prepared to withstand their scrutiny.

    What investors don't need to see in tech startups

    For startups seeking early stage funding, investors are looking for startups with a cost-effective IP strategy, not startups that are wastefully spending. Here are a few misconceptions about what VC firms want to see:

    Freedom to operate

    Miller IP Law

    A patent search is a search to aid in determining whether an invention may be patentable. People new to the patent world incorrectly believe that a patent search lets them know whether they could be sued for infringing somebody else’s patent. Determining the likelihood of infringement is known as a freedom to operate opinion or IP clearance search and usually involves a much larger scope and cost.

    Freedom to operate searches are usually not necessary to attract VC funding. VC investors don't typically expect you to know with certainty that you’ll never infringe another company’s patent. Additionally, a startup’s products and business model are likely to change and pivot over time such that a freedom to operate analysis is often worthless by the time the company starts to be profitable. Most investors want to know whether you are aware any major roadblocks that would prevent you from entering the space, that's it.

    Lots of issued patents

    Miller IP Law

    Investors know that the patent process takes time. Most investors want to know that you have a viable, well-executed portfolio, without any of the major issues. You should have patent applications on file and issued patents, but a long list of issued patents isn’t a prerequisite for early stage funding rounds.

    Big Law Firms

    Miller IP Law

    Many businesses assume that the more you pay for an attorney the better they are and that the best patent attorneys work at big international law firms. Big law firm patent attorneys are very expensive and can quickly drain a startup’s limited resources. Investors know that you can get high-quality patent prosecution work from smaller law firms at more affordable rates.

    Most investors simply want to see that you have engaged a patent attorney that is competent in your field of technology and experienced at managing patent portfolios. Investors will usually have their own patent attorneys look at your portfolio regardless of who your patent attorney is and judge the portfolio on the quality of your patent applications, not how expensive your patent attorney is.







    About the Firm...

    Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.


    Top Blog Articles

    1. Cheapest Way To Get A Patent

    2. How Long Does It Take To Get A Trademark?

    3. Why Are Patents Important?

    Miller IP Law


    Want to chat more about this topic, or got a burning question? Take advantage of instant chat and send us a direct message

     

    Miller IP Law

    Find Us On LinkedIn

    About Our Firm…

    Miller IP Law is a group of attorney's, based out of Mountain Green, Utah, who are excited to help you build your business and further innovate market places and economies. Please consider looking at our services, billed at flat rate, and be sure to grab a free strategy session to meet with us!

    Start Your Journey

     

     

    Get weekly stories and information about protecting intellectual property with our e-mail Newsletter today!



    Need To Get In Touch With Us?➡

    Schedule A Free Strategy Session Today…

    Miller IP Law




    Flat Fee Pricing

    Straightforward for Patents and Trademarks



    Miller IP Law

    Patent Application

    Miller IP Law

    Trademark Application

    Miller IP Law

    Copyright Application

    Read more →

    Is software protected by copyrights or patents?

    Computer software or programs are instructions that are executed by a computer.

    Software is protected under copyright law and the inventions related to software are protected under patent law.

    Source Code and Object Code

    Computer software are instructions that form source code and object code. Software takes a lot of skill, time, and labor to develop them, so it is natural that you want to protect all your hard work. Computer programs can be copied and used by unauthorized persons. Your actual software and app source code may be protected under copyright law,. The concepts and inventions related to software may be protected under patent law.

    COPYRIGHT PROTECTIONS

    Copyright Law defines computer programs as literary work, and as such is protectable under copyrights. For example, computer programs are sets of instructions expressed in words, codes, schemes or other forms, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result. The words, codes, schemes, or other forms may be protected under Copyright law as creative works the same as a book, a movie, or a work of art (and often to the coder, the source code is a work of art).

    Copyright protection extends for author’s lifetime plus 70 years. For works made for hire, the term of the copyright is 95 years from first publication or 120 years from creation, whichever is shorter. Copyright protection is inherent at the time of creation and is automatically protected, and may appear to be attractive and free option to protect your software. Additionally, if you want to be able to definitively define the date you created your creative work, you can register your copyright with the Library of Congress. 

    It should be noted that copyright protects the expression of an idea and not the idea itself. Hence, in the case of software programs, it is the software program that is protected, and not the functionality of the software programs. Unless you only want to protect exactly how the source code is written, it may not be a good idea to rely solely on copyright law to protect software related inventions. To protect the functionality of the software programs you should seek patent protection.

    Patent Protections

    In the United States software is patentable. Software patents are typically referred to as computer implemented processes. Software can be protected in the U.S. if it is unique and tied to a machine. Most importantly, for software to be patentable, the software needs to offer some kind of identifiable improvement. Merely doing something that is known on a computer (like adding numbers together) is extremely unlikely to be patentable.  For example, U.S. patent law excludes "abstract ideas", and this has been used to refuse some patent applications involving software.

    In Europe, "computer programs as such" are excluded from patentability.  The EPO holds that a program for a computer is not patentable if it does not have the potential to cause a "further technical effect" beyond the inherent technical interactions between hardware and software.

    While source code may not be patentable, it does not mean that a software invention may not be patented. One way of determining whether a software invention will be considered patentable subject matter or not, is by trying to judge whether the software invention offers a technical solution to a technical problem. The invention may be considered patentable subject matter if the software invention offers a technical solution to a technical problem.

    Advantages of Patents over Copyrights

    A patent over a software invention can be used to prevent others from utilizing a certain algorithm without permission or to prevent others from creating software programs that perform patent protected functions.

    In contrast, copyright law protects only a particular expression of an idea i.e. copying of source code or a portion of it, and not the copying of the idea/functionality. 

    Accordingly, patents offer much broader protection.

    There are significant differences in the protections offered by patent and copyright. Here is a summary of the differences in the protections offered by copyrights and patents for software:

     







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