Can a social-media post demonstrating a technology be used to establish patent priority?

This post is based on my answer to a question on Quora. The question further asked whether there is any precedent for the legal use of a ‘first reported online publication date’ in social media to establish priority of invention for the purpose of getting a patent at a later time. my answer: No, this will accomplish exactly the opposite of what you hope to achieve. The only way to establish a priority date that will be meaningful for the purposes of getting a patent is to file a patent application. That patent application can be provisional or non-provisional. The question details assume that the social media post itself will somehow be proof that the author invented something as-of a particular date. The current US patent system doesn’t work that way. It has never worked that way outside of the US, and in fact, even under the US’s old “first-to-invent” rules, a social media or other online post would have been of very limited value. Instead of establishing a provable priority date, the post will become prior art that will prevent you from getting a patent in many countries (e.g., Europe). In other countries (like the US) it will start a clock for a date by which you must file a patent application in order for the post to not count as prior art. All this without providing any benefit in terms of establishing a priority date. If you’re not ready to file a provisional patent application yet, then the best alternative is to keep the invention a secret until you either file a patent application or you decide that you don’t need a patent....

What is the cost for filing an international patent?

There is no such thing as an international patent, so it is necessary to file national patent applications in each country in which you eventually want a patent. It is possible to delay  the date on which you have to file those national patent applications by using the PCT system. A patent application filed under the Patent Cooperation Treaty PCT basically acts as an international placeholder. A PCT application can claim priority to an earlier-filed national application. National applications must be filed within 30 or 31 months (depending on the country) of the PCT application’s priority date to get the benefit of the priority date. As for cost, it depends entirely on how many and which countries you want a patent in. I usually tell clients to budget somewhere in the ballpark of $50,000 (US) for a set of national filings. Sometimes it can be much lower (e.g., $10K to $30K), depending on which countries you file in. The largest part of the cost tends to be the translations. But that’s just the start, since most countries will also conduct prosecution of your application, so over time you will likely see prosecution fees of ~$10,000 to $20,000 per country, plus each country will also charge “annuity fees” (also called “maintenance fees.”), which will run another few thousand dollars per year (annuities get increasingly more expensive over time, since most countries use a rising fee schedule). So, it’s not cheap. You’ll want to be earning revenue from your invention (or at least well on your way there) once you start spending money on national patents. As mentioned above, the PCT system...

Is Reduction to Practice enough to establish a priority date for a patent?

The concept of “Reduction to Practice” doesn’t actually matter these days, unless you have a US patent application that was filed before March 16, 2013. US patent applications filed before that date are granted to the “first-to-invent,” whereas applications filed after that date are granted to the “first-inventor-to-file” a patent application. The law that made the change is known as the “America Invents Act” or “AIA.” In the pre-AIA days, a person who was the second to file a patent application for a particular invention could prove that he/she was actually the first person to invent it by proving that they had “actually reduced the invention to practice” on some date before the person who was first to file. Under the pre-AIA rules, only a patent application with an enabling disclosure qualifies as a  “constructive reduction to practice.” An “actual reduction to practice” requires physically making a working model of the invention. (The full rules of establishing first-to-invent are much more complicated, but are unimportant here.) But, as I said above, it doesn’t actually matter unless you already have a pre-3/16/13 patent application pending. There is a recurring theme in which inventors hope that a witnessed invention disclosure document will somehow  be proof that the he/she invented something as-of a particular date.  This is commonly known as the “Poor Man’s Patent.” Variations include mailing the disclosure to yourself in a sealed envelope, putting the disclosure in a social media or blog post, or giving the disclosure to a lawyer or relative for safe keeping. In the post-AIA US patent system,  Poor Man’s Patents are worthless. Under the current rules...

Does patent filing help in initial fund raising for hardware startups? Or is it better to wait until after funding?

I think it’s difficult to give a one-size-fits all generic answer to this question. Deciding when to file a patent application is always going to involve a balancing of cost, risk and potential reward. My impression is that having a patent application pending is unlikely to make or break an angel investment round. While it may be more helpful in later rounds, I think it’s unwise to file a patent application strictly for the purpose of attracting investors. Most won’t be impressed by a “patent pending” label, and at least some of those who are will be smart enough to see through a weakly crafted patent application. Do it well or don’t do it all. Doing it well requires filing a patent application after it’s too early, but before it’s too late. I’ve seen many patent applications that were filed “too early” as well as many that were filed “too late.” The ones that were filed “too early” generally suffered either from a too-cursory description and drawings. This is usually a result of efforts to save costs. An insufficient description typically winds up causing problems when it becomes necessary to narrow claims during prosecution (which happens in almost all cases). If there isn’t enough detail, drawings and written description support to make valuable narrowing amendments, then a patent application can wind up stuck between having disclosed the basic gist of the invention but not having enough detail to get the claims allowed. By the time this is discovered, it’s usually too late to do much about it. In some cases, patent applications get filed “too early” in the sense...

Should patents have dynamic patent monopoly lengths?

This is based on a Quora question. There are a lot of potential meanings to the phrase “dynamic patent monopoly lengths,” but by one definition, they may already exist. Most patent offices in the world charge some type of “maintenance fee” at regular time intervals after a patent is granted, or even while pending in some cases. Failure to pay such maintenance fees results in the patent rights expiring before the theoretical “full” term of the patent or patent application. For example, in the US, maintenance fees are due at 4, 8, and 12 years after the patent’s grant date. If the all of the maintenance fees are paid, the patent will have a full term of 20 years from filing (or 17 from issuance, or as adjusted by patent term adjustments, or as modified by a terminal disclaimer, etc. – it’s complicated).   Only something around 50% of patents are maintained for their full terms (see: Patent Maintenance Fees), so the rest only have a term that is as long as the maintenance fees are paid. Seems like a “dynamic” length to...

Can I release an invention to test the market and then patent it after if it looks like it’s going to sell?

In the US, you would have one year from a public disclosure to file a patent application. However, most countries don’t give as much time. In most countries outside of the US, most notably at the European Patent Office, patents are evaluated from an “absolute novelty” standard, meaning that any sales or other public disclosure of an invention can eliminate the ability to get a patent for that invention. The one-year clock in the US is colloquially called a “grace period,” and very few other countries grant them. Canada provides a 1-year grace period, and Japan provides a 6-month grace period, but the details of how they are implemented varies, so it’s critical to consult with a patent professional in those countries before relying on grace periods. The most common strategy pursued by those looking to market-test a product is to file a US provisional patent application before testing the market. The provisional application acts as a place-holder for a filing date. You then have exactly one year from the provisional application filing date to file a non-provisional patent application which will be treated as-if it was filed on the provisional filing date, but only with respect to the subject matter that was adequately described in the provisional. So, it’s worth being as thorough as possible in writing the provisional, but it can be done at a relatively low cost as compared with a non-provisional.   Based on my Quora answer to the question: Can I release an invention of mine to test the market and then patent it after if it looks like it’s going to...