One of the many curses of a self-written provisional patent application
Entrepreneurs buy into the myth – perpetuated by the patent bar – that they should write and file provisional patent applications before bringing their product to market. There are many reasons why provisional patent applications are wrong for startups, but this post explains yet another, more subtle reason.
The self-serving myth of provisionals traps the entrepreneur into paying their patent attorney one year later into a non-provisional patent application. There are countless promoters, authors, and even the USPTO that preach that provisionals ‘protect’ your idea before you publicly disclose it.
Not only is this not true, it damages the startup in several ways – especially when the entrepreneur writes their own patent applications.
Crystalizing the invention
It is no small task to write a patent application. When done well, it may take a first timer many hours to formulate their invention, then meticulously write it down.
This process can help an inventor/entrepreneur think through their problem from many different angles.
This process can be very beneficial. But it has a downside.
The downside is that the entrepreneur becomes more and more focused on their specific solutions. They can easily over-think the problem space and become convinced that they have though through “everything.”
The problem is that their problem/solution becomes even more ingrained in their thinking – just by going through the patent process far too early.
Entrepreneurs *never* have the solution
No entrepreneur ever has the solution to the problem – especially at the beginning of the journey.
The entrepreneurial journey is to test, learn something, and test again. It is fearlessly searching for that ever-elusive product/market fit.
Entrepreneurs might have a sense that there is ‘something’ out there, but they cannot put their finger on it until they tried, failed, tried, failed, etc – until they start to get traction.
Provisional patent applications make it that much harder for entrepreneurs to learn and adapt
Our intrepid entrepreneur who writes their own patent application puts a big line in the sand. They commit themselves to a course of action ahead of time.
This is a dangerous thing to do.
They write up a patent application and go through a huge process to document all of their thinking – which makes them set in their ways.
Many entrepreneurs who write their own patent applications unintentionally (and often unconsciously) force themselves to follow that document.
Why put so much work into a patent application only to throw it away when the entrepreneur is forced to pivot?
It would be one thing for an entrepreneur to write a business plan, do a Business Model Canvas, or use any of countless tools to help them plan their steps in a business.
But it is another thing to solidify those plans into a patent application that, in the entrepreneur’s misguided eyes, is the “foundation of their business.”
Business plans are made to be updated, but patents are not. You need to disclose *everything* at the beginning. If you are right about your predictions for the business, maybe the patent will have some value.
The myth is that the entrepreneur is *that good* that they can correctly predict product market fit. But they are never that good.
The sunk cost fallacy and early provisional applications
The classic sunk cost fallacy pushes an entrepreneur harder than necessary to do what they said in their provisional patent application. It prevents them from pivoting.
They want their hard work on their patent application to mean something, so they desperately try to force that to happen.
Their provisional patent application crystalizes their product and solution – and prevents them from learning, pivoting, testing, learning, pivoting, and testing some more.
This is yet another example of how the self-serving myth of provisional patent applications damages entrepreneurs and startup companies.
What’s the answer?
The answer is ‘data-driven’ patents.
Any patent written early on during the entrepreneur’s journey is based more on conjecture (and hope) than data. As the business matures, two things will come to light:
First, the entrepreneur will have a much better sense of the technical challenges and risks facing their company. As they work through the technical problems of building and delivering their product, they will certainly encounter issues that need to be solved. Many of these problems have never been seen before, and are very good candidates for patenting.
Second, and more importantly, the entrepreneur will have a much better sense of the market and the customers. Virtually every entrepreneur will develop a better understanding of the market and make many attempts at finding the right button to push for their customers. Entrepreneurs will make many, many attempts at finding the product market fit.
Every entrepreneur needs to be nimble. They need to continually test, evaluate, and learn before re-testing, re-evaluating, and learning some more.
The good patents are yet to come.
If you are going to do a patent, do it well, but also do it when you have *data* to support the investment.