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Europäische Patentakademie

 

Patenting strategy

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There is more to patenting than simply meeting the formal requirements of a patent office. You should try to fit your patent application into the broader framework of developing your invention. Points to discuss with your patent attorney may include these:

When to apply

Because of the formality of the patent application process, the timing of your application may make a big difference to the pressures you find yourself under later. Is it better to apply for a patent earlier, or later?

There is no easy answer to this question. Many inventors are keen to apply for a patent as early as possible - yet many successful companies delay filing until products are almost ready for market.

One disadvantage of early filing is that you may incur substantial costs before you know whether your idea is commercially viable. Applicants have up to two years from filing before becoming liable for significant patent fees, but this is rarely long enough to reach a licensing agreement with a company. It may not even be long enough to establish the commercial prospects of an invention.

One disadvantage of late filing is that someone may file a very similar idea before you.

For many private inventors, cost will be a major factor. The later you file, the longer you delay the costs. But how late can you afford to leave it? As long as he or she knows all the facts, your patent attorney may be able to identify an optimum date for filing, and advise on the steps you can take to protect your idea in the meantime.

Pressure to patent

You may be tempted to apply for a patent prematurely because business advisers or potential licensee companies tell you that this is what you should do. Always consider whose interests are best served by this advice. In many cases there will be little benefit in it for you.

Continuing prior art searching

The world does not stand still once you have filed your application. You must keep up your patent and product searching, as something may happen after you have filed which may affect your later decision whether to continue with your application.

Licensing or business start-up?

The period between filing and requesting substantive examination should be used to seek opportunities to exploit the invention. Even if your preference is a licensing agreement, it may be worth setting a date after which you plan instead for business start-up. The reason is that if no company shows interest in your idea, you do not want to reach substantive examination stage with no other option to pursue.

Re-filing

You may be able to gain extra time to seek a licensing agreement by withdrawing your application and re-filing it later. This is a tactic that you must discuss with your patent attorney, or you may lose more than you gain.

Temporary advantage

It is possible to use a patent application for purely temporary advantage, and to decline substantive examination. For example, you might wish to use it to protect your idea for long enough to achieve your exploitation objectives. Again, you must discuss this with your patent attorney as there may be risks that you have not considered. One almost certain outcome of abandoning an application is that you will find it much more difficult - in fact, probably impossible - to license your invention to anyone. 

Just having your patent application published may be enough. Once published, potential customers and business partners can find out about your invention and contact you if they are interested. Your published application will also be prior art, which could prevent competitors from patenting the same or a similar idea in the future. This might leave you free to operate in that market even if your application is not subsequently granted. If this suits your business strategy, you might then choose to go no further with the patenting process, especially if you could not afford the expense of acquiring or subsequently enforcing a patent.

Funding

A granted patent may help persuade investors that your idea is worth backing, and by that means the cost of patenting may be covered. You should therefore think of a patent not just as a means of protecting the idea, but also as an instrument for raising funding.

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