The Provisional Patent Hoax
One of the greatest hoaxes in our industry is the notion that provisional patent applications are a good thing. They are not.
I am always amazed how some hoaxes are told over and over to the point where people actually believe them. When they find out that the hoax was not true, their confidence is shaken.
Patents are not Lottery Tickets.
At first, patents might look like lottery tickets. You just write down some crazy idea and, like magic, you can license it for a billion dollars! In the real world, we all know, deep down, that this never happens.
Provisional patent applications take that concept to another level.
Part of the hoax is that if I write down some “idea” and file a provisional patent application, I am somehow “protected.”
Most people who file provisional patent applications do so to avoid the investment what they call a “full” patent application. In other words, they don’t want to spend the money (which may be $15-20K), yet at the same time, they “believe” that their idea might be worth billions.
In other words, they are not willing to invest in the idea, but they always want the lottery ticket payout.
You Cannot Patent a Design Specification.
Most provisional patent applications – especially from startup companies – are essentially a design specification. These are often a wish list of what they want a product to be, but without doing the hard work to figure out the product itself.
The legal standard is whether someone of ordinary skill in the art can take your description and build the product “without undue experimentation.”
In other words, the patent specification must be detailed and complete enough for me to hand it to a machinist and have them build the entire device. If the provisional patent application fails to have that level of detail, it does not give you any “protection.”
This kind of provisional patent application is much worse than you think. Not only will you wind up disclosing all your trade secret plans, you will get zero protection.
Of Course Your Patent Attorney Will Take Your Money.
Your patent attorney has a conflict of interest. On one hand, they are supposed to represent you and tell you the hard truth that you need to put more work into your invention before getting a patent. On the other hand, they have mouths to feed.
Most patent attorneys will not stand up to their clients and make them wait to get a patent application. Most will use the cop out explanation that “the client asked for it, so I did it” excuse.
Patent attorneys have two duties: one duty to as a fiduciary to do what is the best interest of the client and a second duty as an agent to do what the client requests.
By using the explanation of “the client asked for it,” the attorney is abdicating their responsibility to act in their client’s best interest. It just so happens that the patent attorney also gets paid.
The Hoax of Provisional Patent Applications.
The hoax of provisional patent applications is the best marketing scam for patent attorneys.
The scam is that if the patent attorney talks you into something “cheap” now, they get to beat you up a year later to do a non-provisional patent application. The patent attorney will be breathlessly talking about “losing your patent rights” if you don’t pay them handsomely to write the non-provisional patent application.
The victims of this scam are worried that the patent will cost them a lot of money. They see only the first price – maybe $1500 – but do not realize that they have just committed to spending $40,000 or more.
The patent attorney just got a fish on the hook, and will reel it in a year from now. It is shameful that patent attorneys persist in these type of marketing hoaxes.