The Poor Man's Patent

Note to self: a note to yourself isn't worth the paper it's scrawled on

Illustration: Harry Campbell

Patent attorneys charge between US $7000 and $15 000 to prepare and file a ­patent application. If only there were a cheaper way, a kind of poor man’s patent. But it just doesn’t exist.

Some people think they can protect their ­invention by writing a ­patentlike description of it and ­mailing the ­document to ­themselves, but this is no substitute for patent ­pending. At best, the letter shows that you ­conceived an ­invention by a certain date, but you’ll ­probably be able to prove that with ­engineering notebooks, eâ''mails, dated PowerPoint presentations, and the like. Moreover, ­evidence of an ­invention’s conception date is ­useful only in a limited set of ­circumstances, most of which involve actually ­filing for a patent at some point in time. So save yourself the paper and the postage stamp.

There used to be a soâ''called disclosure ­document you could file with the U.S. Patent and Trademark Office for $10, but early last year the USPTO eliminated the option because it not only provided no real ­benefit to inventors but also ­misled them into thinking they had achieved patent-­pending status.

Undoubtedly more useful is the provisional patent application. Once this application is filed, an invention can be disclosed or sold without fear of losing patent rights, so long as a full ”utility” patent application is filed within a year of the provisional. The problem is that if you draft a provisional improperly, it can limit the scope of possible protection and might even be thrown out by a court, invalidating the utility patent you file later. Worthwhile provisionals may end up costing nearly as much as a real patent application, so they don’t really count as a poor man’s patent.

Unscrupulous operators regularly prey on naive inventors by touting inexpensive patent-pending status. The Federal Trade Commission and the Patent Office are onto such scams and have established programs to shut them down. In one notable case, a patent attorney working for an invention promotion firm saved money by filing only design patents for his clients. Design patents, which, generally speaking, protect the way an article looks, have limited usefulness for most inventions. The attorney was disbarred.

Nor can you save the cost of a patent by ­simply ­relying on copyright or trade secret protection. Copyright ­protection may prevent someone from ­photocopying your writeâ''up of your ­invention, but by law it ­cannot stop anyone from implementing the ideas or functionality of your ­invention in a competing product. As for trade secret laws, they have a hard time protecting ideas or ­functionality, because they can’t stop someone from reverse engineering your invention.

Suppose you invent a light saber toy (à la Star Wars ) and document all its circuitry in schematics. A ­competitor buys your ­product, gains an understanding of its ­overall functionality, tears into it in order to reverse ­engineer the circuitry involved, and begins selling ­competing light sabers. There has been no copyright ­infringement, because your schematics were not copied, and there is no trade secret ­violation, because the ­minute the ­product was sold, its ­status as a secret ended. You say that you mailed the ­schematics to yourself? That does not give you grounds to sue ­anyone for anything. You have a design patent? That would be easy to get around. You have a ­provisional ­patent ­application? I hope it discloses all the relevant circuitry and is not just a bare-bones description of a mechanism producing a blade of contained energy. No version of a poor man’s patent could possibly help you here.

Patents are expensive, no doubt about it, and the requirements are fairly strict. But as my grandmother used to say, you get what you pay for.

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