intellectual-property, patentI’ve heard many times over the years from the internet and other sources that I can essentially patent my invention for free.
The process goes something like this:
The post office will mark the envelope with the date and time, thus securing my effective “filing date,” for only the cost of mailing something.
Can I enforce this “poor man’s patent?” What legal rights does this process give me?
This myth is (mostly) nonsense.
It’s been going around for a long time, and I’m positive it’s never done anything but hurt anyone who fell to its trap.
What it doesn’t give you.
The general philosophy behind having a patent system is that it encourages the sharing of scientific knowledge, by giving the assignee the explicit right to forbid others from performing it. Mailing a letter in secret doesn’t accomplish that, and no patent system will honor it.
And that’s really the end of the story. You gain no rights by taking those steps.
What it does give you.
If you make your “poor man’s patent” publicly available, you might be able to act as prior art to someone else who tries to get a patent. One of the requirements to get a patent is that the invention is “novel,” meaning it’s never been done before and disclosed to the public.
The bar for “publicly available” is somewhat fuzzy, but an envelope in your desk won’t count. This is where variations on the myth, like posting a YouTube video or writing a page on a website, have come up. They’re no more valid, except in potentially providing this prior art.
Of course, everyone else is still free then to use it however they please, they just can’t stop you from doing it. You aren’t getting a patent of any sort, nor anything equivalent.
And in many countries, you’re even throwing out your rights to obtain a patent at all, even if you choose to down the road, although the same does apply for disclosing your invention through a release.
And if you’re worried about being able to do it yourself–i.e. if you’re already using it in the world–the thing you publish won’t help you any more than that does.
That all said, patent applications are, by default, held private for the first eighteen months after they’re filed. If you wanted to use this arbitrary form of non-protection, you’d have to catch the application before it was granted, contact the examiner, and prove your case, or else it would have to go through expensive litigation to be invalidated.
So really, I don’t think this has much merit at all.
What you can do instead.
It’s not nearly as cheap, and it only lasts a year, but the official form of this process is called a “Provisional Patent Application.” You should have a patent professional draft it, so it can be a few thousand dollars, but you basically write down all the context and a basic description of your invention. You can then, any time within the following year, file a non-provisional that claims the filing date of your provisional.
This way, you can delay the full expense of writing claims and filing a non-provisional (a “patent”) for the time it takes you to raise some money, or even improve or narrow in on your invention.
There’s no cheap substitute for a patent. Patents are a business decision not to be taken lightly.
I've never heard of this myth, but it is complete nonsense under the current patent laws. Mailing a description to yourself does absolutely nothing.
All countries in the world now have a "first-to-file" patent system. To establish patent rights, you must file a patent application (a provisional is sufficient). Documenting your invention in private does absolutely nothing to protect any rights and it does not create prior art that would prevent others from patenting the invention. Prior art must be public.
If your only goal is to prevent other people from patenting the idea, that is very easy to do. A blog post describing the invention is sufficient to create prior art. There is even a website that facilitates publishing your idea for the purpose of preventing others from patenting it.
If you want a patent application and are really pressed for cash, you can easily file a provisional application on your own for $130. You'll want to describe the invention in as much detail as you can. Doing it on your own, however, you run the risk of leaving out important information and it might make your patent later on less valuable, but it is a cost-benefit tradeoff to consider.
The "poor man's patent" is nothing to do with patents and so is not helpful in establishing a patent. But it can help in terms of establishing copyright.
I think this is confusing two or potentially three things (I've included trademark in, as it is often talked about in conjunction with the other two)
Patent is the right granted to an individual/company to protect an idea from use by others. You can patent ideas and inventions but you can't patent computer software. Patents need to applied for in multiple jurisdictions to get full coverage. There is no "world-wide" patent that can be bought. This is a paid for service.
Trademark is a logo, name or other device registered by a company or individual which represents that company and allows control of that logo, name or device. This is a paid for service.
A Trademark can be unregistered, the right of which you receive by default, but then it is much more difficult to restrict other entities using your trademark and difficult to prove good will and damages. If two entities are trading in the same business area and have the same trademark, it becomes complicated and the realm of trademark lawyers.
Copyright is a right assigned to the originator of a copyright material for a number of years to print, copy, publish and control the copyright material. The number of years is dependent upon the material. This is a right gained upon creation of the work.
For these three things, mailing yourself a copy of something will assist in proving your copyright, but will not assist in patent or trademark.
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