WHEN TO CONSULT WITH A PATENT ATTORNEY: TIMING IS EVERYTHING

For small businesses seeking to differentiate themselves, patentable intellectual property can be a cornerstone for success. Whether it’s a groundbreaking product design, innovative software, or a unique process, patenting your intellectual property is crucial. But when should small business owners pull the trigger and consult with a patent attorney to secure those rights? Let’s discuss this essential question.

It is important to understand that consulting with a patent attorney is not just about safeguarding your creations; it’s about maximizing their value. There are a few times in a product’s lifecycle when engaging with a patent attorney is necessary.

1. Conception of an Invention. The moment you conceive a novel idea or invention, consulting with a patent attorney should be on your radar. Early discussion with an attorney allows the opportunity to receive guidance on the feasibility of patent protection and potential strategies to maximize protection.

2. During Product Development. In the process of developing a product, involving a patent attorney can steer your efforts in a direction that optimizes intellectual property protection. The attorney can advise on designing around existing patents, ensuring that your product doesn’t infringe on others’ rights while enhancing its own protectability.

3. Prior to Launch. Before you unveil your product or service to the market, it’s important to check in with your legal advisor. A patent attorney can conduct a patentability search to assess whether your invention meets the criteria for patent protection. This search helps in understanding existing patents and whether your invention is truly novel, non-obvious, and useful.

4. When Facing Potential Infringement. If you suspect that your intellectual property rights are being infringed upon, consulting with a patent attorney promptly is essential. The attorney can guide you through possible enforcement strategies, including sending cease and desist letters or pursuing litigation if necessary.

While there are many benefits of consulting with a patent attorney, it is also important to remember that the consequences of delaying patent protection can be dire for small businesses. Here’s what you stand to lose by procrastinating:

Losing the Race to the Patent Office. In most countries, including the United States, patent rights are granted to the first inventor to file a patent application, regardless of who invented it first. Delaying patent protection increases the risk of someone else filing a patent for a similar invention, potentially blocking your ability to obtain patent rights.

Loss of Rights. In the United States, you must file a patent application within twelve months of publicly disclosing the invention or offering to sell it. Failure to timely file the application will prevent a person from ever obtaining an enforceable patent. Without patent protection, your invention is vulnerable to exploitation by competitors. They can freely replicate your product or process, undercutting your market position and eroding potential profits.

Small business owners should consult with a patent attorney early and often to effectively evaluate how best to secure intellectual property rights. Conducting a patentability search and acting promptly to protect your inventions can safeguard your competitive advantage and maximize the value of your intellectual property portfolio. Remember, in the fast-paced world of innovation, time is of the essence, and delaying patent protection could cost you dearly in the long run. If you have questions about the patentability, protection or monetization of a creation, contact patent attorney Kelly Swartz to discuss your options.
Kelly Swartz is board certified in intellectual property law and practices in the areas of intellectual property, including patents, trademarks, copyrights and trade secrets. She helps individuals and businesses safeguard their intellectual property to create clarity of their branding concept while developing a timeline for protecting all intellectual property assets.