Poor Man’s Patent – Fact or Fiction?
From time to time the phrase ‘Poor Man’s Patent’ gets thrown around, seeming to imply there is a free or low-cost way of obtaining protection for your invention or idea. Below, we discuss what a ‘poor man’s patent’ actually is, and why it may destroy the chances of you ever commercialising your idea.
Postmarked Sealed Envelope
A quick internet search reveals that the phrase ‘Poor Man’s Patent’ is most well known in the US.
This involves writing your idea down, sealing it in an envelope and posting it to yourself so that the sealed envelope is stamped with the postage date. This was considered third-party verified proof of the date of your invention.
If someone else then came up with the same idea subsequently, the postmarked envelope could then be opened with witnesses present, proving that you originated the idea on at least the date of the postmark.
This information is still available but is dangerously out of date. If you follow the advice for a ‘poor man’s patent’ these days, you will potentially irrevocably destroy your chance of obtaining a valid patent later on, and therefore destroy your chances of monetising your invention. It is that critical.
In the US before 2013 the above strategy could, in theory, give you the right to a patent to the idea, even if someone had already filed their own patent application to the idea first.
At that time, the US was a ‘First to Invent” patenting system’ Therefore, proving when you had the idea first was as important if not more so than filing the patent application to lay claim to the concept.
The US has since changed to a ‘First Inventor to File’ patenting system in line with the majority of the rest of the world, Sealed envelopes containing your ideas on paper as explained above now count for little or nothing in all the major patenting systems worldwide. And, in fact, using the ‘poor man’s patent’ approach will these days do more to harm you protecting your idea then it will help you.
Having said that, the ‘sealed envelope technique’ is still relevant for Copyright purposes. For example, it can help to prove when you came up with a drawing or a work of literature before a certain date, if someone has copied you.
A registered design (also called a ‘design patent’ in some territories, such as the US) protects the appearance of a product.
Therefore, if someone copies the ‘look’ of your product and you have a registered design or design patent, you can enforce your rights against them.
A registered design is nearly always cheaper to obtain than a patent (unless you have multiple products that all look slightly different but work in the same way), so it may be considered a “Poor Man’s Patent”.
Having said that designs do not protect the way a product works. Designs rights do not protect the ‘technical concept’ of an idea – that is for a patent. Therefore, if someone makes a product which does exactly the same thing as your product, but has a different exterior ‘look’ to it, your registered design will not protect it.
Registered designs are more useful in addition to a patent, or if it looks new but the concept is well known.
DIY “Provisional” Patent Application
A DIY “provisional” patent application could also be considered to be a Poor Man’s Patent.
This is effectively where you write down the details of your invention and file it at the patent office but don’t file claims, and potentially some other required parts with it.
Before the first anniversary of the filing date, you can have a professional write claims for it and complete the application, hopefully once the business has taken off and you now have more funds.
There are many dangers to this approach. Some are outlined in our earlier article here. But, in essence, you can only use the original date of filing for the matter you originally filed. If the new claims that you add downstream need additional matter to word them effectively, then this new or added matter would potentially be invalid if you had sold the product or disclosed details of it before filing the new claims (such as marketing the idea to investors, setting up a website to promote the idea, or putting a Kickstarter funding proposal together to raise funds).
Professionally patenting your invention may, on first appearance, appear to be an expensive business. But, if you are serious about protecting your idea, a professionally drafted patent application is the only way to go.
Cutting corners in the early stages of an idea or business can seem attractive, but it will likely cost more in the long run to fix the mess you might end up in.
We often see clients that have deals on the table, but have jeopardised themselves by not investing in their patent and trade mark rights at the beginning, leading to significant issues completing the deal they have worked so hard to arrange.
In short, do not use the ‘poor man’s patent’ approach. These days, it is worse than useless. Do it properly or do not do it at all. Treat patenting and trade marking as an investment; ask questions of your professional legal advisor, and make an informed decision before you disclose your ideas.