How applying for patent affects my business

Question

I am working on software patent application and planning to start the business after submitting the application. What happens if my application is rejected. Now my idea is in the open. Considering if my business working and investments are coming in, can I lawyer up and submit new application for the same idea?

Answer 1

Your abandoned application may be used as prior art against a later filed patent application if it is published prior to abandonment, and you file the second application more than one year after the date of publication. However, if you allow the application to become abandoned without filing a continuation application, you open yourself up to other prior art, such as public disclosure of your product, other similar products coming on the market. Also, if another inventor files a patent application prior to your later filing, they will be line for the patent even if you invented it prior to them. That being said, typically for a software patent application, the US Patent Office will probably not examine your application for at least 18 months, and closer to two years in software patent applications, and you can prolong the examination process for several years after that through responses and appeals. You can also file continuation applications to extend your priority date for a number of years as long as you file the continuation application before the earlier application goes abandoned.

Answer 2

When you file a non-provisional patent application, you can opt out of publication if the application is not prosecuted internationally. It will not publish until it issues as a patent. If your application is rejected during prosecution, you can abandon your application and it will never publish.