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Should I patent my idea before posting it on public internet forums? Could someone who sees my post beat me to it?

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What is your goal? Generate licensing revenue? Protect yourself against trolls? Protect yourself against competitors? –  Luis Sep 21 '12 at 19:07
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8 Answers

Getting a patent is an expensive process that takes several years. If you wait to get a patent first, then it's likely to be old and irrelevant by the time you post it. If you're planning on patenting an idea, it's best to not disclose anything about it in public. Aside from the potential of someone stealing your idea, you risk limiting your ability to patent it later.

The U.S. is a 'first to file' system, meaning that someone can steal your idea and file an application before you. There is a thing called a "provisional patent application" that lets you "lock in" a submission date for an idea and use the term "patent pending". If you decide to file a full patent application, the date you submitted the provisional application is used as the submission date for the patent. This can give you more time to put together a full patent application without worrying about someone jumping in and beating you to it.

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What about things that already in the public domain ? I thought it wasn't possible to patent those. –  UncleJack Sep 21 '12 at 8:15
    
You can't patent things that are in the public domain. –  ihtkwot Sep 21 '12 at 13:02
    
"The U.S. is a 'first to file' system, meaning that someone can steal your idea and file an application before you." This is a sadly common misconception. If you steal someone's idea, you are not an "inventor" in the sense of U.S. law. –  user1053 Sep 21 '12 at 19:49
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@Nase- You're assuming that the true inventor can prove that they invented the invention first. Many people (especially individuals and small companies) don't keep adequate records to be able to go back and prove that sort of thing in a review hearing. With the "America Invents Act of 2011" changing the US to a first-to-file system (instead of first-to-invent), I suspect that it will be even easier to patent someone else's idea. The safest course of action is to keep the invention to yourself until you have at least filed a provisional patent application. –  bta Sep 21 '12 at 20:46
    
What was the reason for the US changing to first-to-file system? –  TMOTTM Nov 23 '13 at 22:31
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I've been granted 3 provisional Patents and it cost me an arm and a leg - over $20,000 (this was in 1998 and 1999). Unless you have money to burn I offer my personal advice:

Using snail mail I post a letter via registered post to myself with the idea and get people I discuss the idea with to sign Non-Disclosure Agreements. I never open the registered letter I keep them all in my safe. This way if someone beats me/you to it and you (or your attorney) are monitoring Patent applications, you have evidence to show the Patent Office it is not new.

Never put a good idea up on a forum. Thats one way RedGate use to come up with new product's..

I discuss Provisional Patents here

My answer is you should register post a letter containing the idea to yourself, include pic's, video's, document's diagrams & etc and mail them to yourself. Then get any Venture Captialist to sign a NDA, then get funding to apply for the Patent if its got backing.

Questions

  1. Is there a Registered-Post Patent legal precedent? Wikikpedia Poor Mans Copyright

There is no provision in US copyright law regarding any such type of protection. However if the letter is forensically certified as unopened and officially dated, stamped with an authentic Registered Barcode. You can still object to the Patent being granted on the grounds that the Patent is not a new idea. To object a competing application being granted you have to lodge a complaint within 6 months. * May differ per country

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Has this mail-to-self tactic been tested in court? –  Dusty W Sep 21 '12 at 8:54
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Mail to lawyer is probably a better strategy. –  Alex Chamberlain Sep 21 '12 at 9:39
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evidence to show the Patent Office it is not new Sorry, if it hasn't been disclosed publicly or used commercially, it doesn't count as "prior art" - so these wouldn't affect someone else's patent application, under the upcoming change to first-to-file (on 13 March 2013). –  user905 Sep 21 '12 at 9:55
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Can you post what "RedGate" product they stole? –  JonH Sep 21 '12 at 13:33
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Information kept in your safe and never publicly disclosed will not count as prior art against competitors. –  Dennis Crouch Sep 21 '12 at 18:52
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You should focus more energy on determining market-worthiness of the idea.

If the idea doesn't seem like there is much of a margin for profit, then you could consider posting it since it doesn't matter if someone steals it.

Alternatively then, you could publish it via a CC license that will limit the terrain of other patentability (due to your public prior art)

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But what if I think it's not market-worthy, discuss it online, and then Microsoft patents it? :( –  endolith Oct 6 '12 at 13:26
    
@endolith - Discuss it online in a fashion thorough enough to be used as prior art. This will enable you to prevent Microsoft from patenting it (or at least make it not worth their while to try). –  Ben Barden Apr 9 '13 at 21:17
    
@BenBarden: See patents.stackexchange.com/q/636/1454 –  endolith Apr 9 '13 at 21:28
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Any patent lawyer will tell you that the safest strategy is to file a patent application before making any public disclosures. Under both the old and new US patent laws an inventor can still file for patent protection for up to one year after making a public disclosure. However, other countries do not offer that right and so your non-US patent rights would be lost. In addition, filing for patent protection first helps demarcate your invention. If instead you first post it in a public forum, there may well be some later controversy regarding who invented what.

The reality is, however, that a startup company is typically not going to be very successful if they always follow the safest strategy promoted by their lawyers. Patenting is expensive and time-consuming and anyone with scarce resources will need to consider whether that is the highest and best use of their currently available resources. Many new products are patented, but most are probably not patented. Yet, their manufacturers are still able to make a profit.

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Should I patent my idea before posting it on public internet forums?

If you post it on a public forum, then it becomes prior art for the others. So they can't patent it! You, on the other hand, have only one year to file before it becomes prior art for you as well.

Could someone who sees my post beat me to it?

Theoretically, No. Even if someone tries to beat you to it, you can always post the prior art (which you yourself posted) to nullify it [Ref:America Invents Act of 2011]. There's a good probability that the patent agent reviewing an application might miss the prior art you posted and grant the patent but this reform should take care of that discrepancy for the US. For other countries, you'll have to do a little research.

EDIT- It seems the US is changing to first-to-file (active 16 March 2013) which means that the one year grace period is gone, so that after posting online, it immediately becomes prior art for the poster too. So if you want to patent your idea, you just shouldn't post it before filing it.

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@FlavorScape I was thinking legitimate forums like the one we're on, which maintain logs! But yeah, on others, there's a good chance of betrayal. –  tipycalFlow Sep 21 '12 at 7:37
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In addition to posting to a public forum, one can use timestamping services like itconsult.co.uk/stamper.htm –  JPS Sep 21 '12 at 7:53
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one year to file before it becomes prior art The US is changing to first-to-file (active 16 March 2013) en.wikipedia.org/wiki/… This means that that one year grace period is gone, so that after posting online, it immediately becomes prior art. However, you can file a "provisional" application ($125) - then you can disclose, and have a year to file the full application. Most countries use this system. –  user905 Sep 21 '12 at 9:37
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@FlavorScape archive.org retrieves pages on specific dates and can be used to prove what was available on what date –  Plepleus Sep 21 '12 at 14:06
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@user905 I don't see how going to first to file would change the year to file. 35 USC 102 is not changing and that is what gives an inventor one year to file from any public disclosure, use, or publication. Publishing it online would start the one year and if anyone else (i.e. the "by another" in the 102 statute) tries to apply for a patent on that subject matter it could be used as prior art on that someone else. –  Plepleus Sep 21 '12 at 14:10
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Should I patent my idea before posting it on public internet forums?

No. It then becomes prior art itself. You wouldn't be able to patent it, because it was already publicly known - even though it was you who published it.

You can file a provisional patent application which will give you year's grace. They cost $125. Then you can post it online - but now the clocks starts ticking, and if you don't file the full application within that year, you won't be able to.

Note: The USA used to give this year's grace automatically ("first-to-invent"), but is changing to first-to-file next year (16 March 2013).

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There's still a one-year "grace period" in the US, although its exact scope is a little less clear under the AIA. –  user1053 Sep 21 '12 at 19:52
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In UK, displaying your invention or discussing it publicly, such as in a forum, invalidates you from making any patent application

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This is not entirely correct. Public release of the invention information could be used at Prior Art against its own application. However, in the US you do have a 1-year period in which to apply for the patent, I'm sure the UK/EU have a similar grace period. –  Ron J. Apr 8 at 13:34
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Another cheap yet powerful alternative is to certify copies of your printed materials through Notary Public.

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This may NOT be considered Prior Art as it is not an act of publishing or making the document known to the public. –  Ron J. Dec 17 '13 at 14:12
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