Variations on the search term, “how to get a patent FREE” are extremely common. Since it’s such an enticing idea, many inventors and fledgling startups want to know how to patent an invention for free. All justifications I can give you aside (I’ll save those for later in the post), a patent is an expensive proposition for many startups and solo inventors. Particular to early-stage startups and solo inventors, certain factors militate against the expense of patents, including:
- Cashflow & Burn Rate
- Investor Justification
- Time Investment
On top of these, particularly for startups in the tech sphere, the question of “is software patentable in the United States” is an additional factor—read more here to learn how software is patentable in the United States. However, top startups know it’s best to start on patents early.
How Do I Patent an Invention for Free?
Contrary to at least one popular legend, this is not possible. But you can reduce costs. Before we get into what patents cost and how to control those costs, let’s talk about the legend of the “poor man’s patent.”
What is a Poor Man’s Patent?
As the legend goes, a “poor man’s patent” involves writing down your invention, and mailing it to yourself. The theory is, that if the envelope remains unopened, one has a sealed packet, which is, most importantly, dated by the United States government.
The theory goes, with this sealed envelope, you have evidence that you invented the invention at least as of the date stamped by the Post Office on the envelope.
Aside from the obvious problem of the old tea kettle envelope inspection technique, critics will note that the theoretical poor man’s patent isn’t even free. One must pay for an envelope, the paper, and the ink. And, of course, the cost of stamps is surely approaching U.S. Patent and Trademark Office filing fees.
All jokes aside, this is a bad idea. This legend gives too many inventors a false sense of security. It doesn’t protect any potential patent rights you could have secured, and it really doesn’t give you anything other than vanity mail. Don’t do it.
In the United States, it Does not Matter Who Is “First to Invent.”
If an invention is patentable, the patent goes to the first to apply for the patent with the U.S. Patent & Trademark Office. Prior to March 16, 2013, there were proceedings to show an inventor invented the invention first, but even then, a drawing in an envelope did not itself compete with a patent application for establishing a right to a patent.
Regardless, the “first-to-invent” system has been gone for over a decade in the United States, and thus any veneer of credibility bestowed by legend on the theory of the “poor man’s patent” is thoroughly moot.
Now, patents are granted to the first to file an application for the invention in question. Thus, it is essential to win the race to the Patent Office by being the first to file a patent application for your invention.
A “Poor Man’s Patent” Can Actually Hurt You
Too many inventors, who have awesome inventions, take this legend as legal truth. However, “getting a Poor Man’s Patent” can actually harm you, your business, and the patentability of your invention in several ways:
- It provides a false sense of value. While the invention itself may be valuable to a startup, the dated and sealed envelope will not be considered of any value to an investor who understands what it is (read: most investors).
- If the envelope is discarded or lost, and someone opens it, you could inadvertently and unknowingly start the clock on your 1-year grace period (in the United States) and lose patent rights entirely in many other jurisdictions.
- Most importantly, it provides a false sense of security. An inventor can assume rights are secured, but in reality no patent rights are secured. Too many inventors discover this too late.
How Much Does a Patent Cost?
From invention disclosure to patent issuance, you should expect to pay from $7,500 to $15,000 in government and legal fees over the typical two- to three-year period that it takes to get a patent, as of this writing. About 50% of this cost is up front (this up-front cost is the “cost to file”). Certain fields (e.g., mechanical & industrial processes) fall toward the lower end and others (e.g., software & chemical) fall toward the higher end.
Types of Patent Legal Fees
We offer patent procurement services on a flat fee model, since most of our clients prefer to know costs in advance. We schedule out costs in advance, and can work with you to create a custom billing model that fits your business, ranging from true flat fees to installment fees. Some of our clients do still prefer hourly billing as well.
How Do You Reduce Patent Costs?
Often, a startup needs to “test the waters,” but cannot afford—or doesn’t yet want to commit to—the process of obtaining a full utility patent. For these needs:
- A Provisional Patent Application can be filed at a lower cost than a full utility patent and with no continuing costs.
- You can work out an arrangement to share some of the work with your attorney both in preparing and prosecuting the patent application.
File a Provisional Patent Application First
A provisional patent application can be used to defer cost and give you some security of eventual patent rights. It can be the basis of filing a full utility patent application within a year of filing the provisional application, wins the race to the Patent Office, enables public disclosures, and provides the ability to mark and label the invention as “patent pending” for up to one year.
Share Work on the Application
Generally, when you hire a patent attorney, you hire them to do all of the heavy lifting for you. However, for some inventors or startups looking to control costs, an arrangement can be made where work is shared between the patent attorney and the client. Some are:
- You could write the first outline or draft of the application.
- You can provide the drawings for the application.
- You can analyze office actions and provide differences between the prior art and your invention.
- If you’re investigating patentability, you can review the search report rather than obtaining a full patentability opinion.
Are Patent Attorneys Expensive?
Hiring a patent attorney costs money—this is undeniable. But, like other business expenses, value is judged by what you get for what you pay. When you hire a patent attorney, you’re getting much more than an extra hand to write the application. A good patent attorney will:
- Write an application that can stand up to the scrutiny of the Patent Office (and later a Court)—patent applications are possibly the toughest legal instrument to write even for good lawyers.
- Save you money in the long-run, by seeing around corners in the law many DIY-ers don’t even know exist.
- Save you time in the long-run, by alleviating your need to learn patent law—which takes years to become proficient with.
- Monitory your deadlines, which there are many of over the life of a patent application.
- Be able to guide arguments against rejections issued by the Patent Office (which studies have shown over 80% of applications that are eventually granted receive).
- Be steeped in patent law and thus write the application without expensive—or worse, rights-destroying—procedural errors too many DIY-ers commit without even knowing.
- Provide work product backed by professional liability insurance.
- Be willing to counsel you through the process based on all of that background.
- Be able to answer questions on a two-minute phone call, rather than you having to put in hours or days of research.
- Bill fairly, and be fully transparent with pricing, expectations, and timeframes.
- File a valid application. Many patent applications are filed without a valid signature—a patent application by a corporation or LLC must actually be signed by a registered patent attorney or patent agent for it to be valid.
The answer to the query, “how to get a patent for free” is that it’s not possible. A so-called poor man’s patent doesn’t exist, and relying on this legend can harm you, your business, and your invention. There are strategies you can employ to reduce patenting costs, and hiring a good patent attorney can save you time and money over the life of the patent application.