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I have an idea for a medical device that has been called "phenomenal" , "solid idea" etc...from medical professional friends of mine. Now I don't want companies in China to copy my idea...!

Problem is though...I have no funds, so can't hire copyrights lawyers, and besides, I read that you can't really effectively copyright something quickly with patents etc...even if I HAD the money? And I want to launch soon. The item is a physical device. So is there a way I can do something for free to offer myself "some" protection?

Maybe take pictures, and publish it on the internet, with proof it was published, with a date on it?

How about mailing myself the blueprints? Mail myself the device, and not open the package?

Any recommendations on this type of situation?

  • This question has really nothing to do with copyrights. Patents and copyrights are entirely different things. – Eric Shain Aug 17 at 13:30
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If you are concerned about third parties manufacturing your device and/or using your device in China, then you need to protect your invention by means of a Chinese utility model and/or a Chinese patent. Both the utility model and the patent may protect the invention so that you can forbid others in China from manufacturing, selling and using devices falling within the scope of your utility model and/or patent.

The differences between the utility model and the patent are:

  • The protection of the utility model expires sooner: the lifespan is 10 years vs. the 20 years of the patent.
  • The utility model is published way sooner than the patent: it takes few weeks or months to get published vs. the 18 months it takes the patent to get published (unless you request early publication, which I am not sure it is possible in China).
  • A Chinese utility model is way cheaper than a Chinese patent.

If you publish your invention somewhere, should a third party apply for a Chinese patent or utility model there is a risk that the CNIPO (Chinese Patent Office) will not find your disclosure and, thus, the patent may be granted. A Chinese patent or utility model would not allow you to import into China, manufacture, use and/or sell your device in China. Currently, the Chinese patent law regards a public prior use occurring anywhere in the world as prior art, therefore if you build the device and publicly use it or you give it to somebody, that would be prior art; obviously, it is unlikely that the Chinese Patent Office gets wind of it, so a Chinese patent could be granted to the third party anyway (in the event that no other prior art affects the novelty/inventiveness of the invention), but in theory you could get such patent revoked if you are able to prove that you disclosed the device at a certain date.

There is no grace period in China, therefore if you disclose your invention before applying for a patent or utility model, your own disclosure would take away the novelty of your invention, thus you would not get the patent granted if the CNIPO finds your disclosure (which is quite likely since the first search the examiners carry out is disclosures from the inventor/applicant). Some (and not that many) countries have grace periods if some requirements are met, so a disclosure by the inventor may not prevent her/him from getting a patent granted filed later on (up to a certain date from the original disclosure).

Having a Chinese utility model could be a good idea because it gets published soon in Chinese language. Even though the Chinese examiners do not limit the prior art searches to any geographical location, they tend to cite Chinese documents during the prosecution of Chinese patent applications because when they filter using keywords they do that in Chinese rather than in English, then the likelihood of stumbling upon a Chinese document rather than an English document (say a US patent application) is greater because the machine translation of the keywords into other languages is not that "perfect". It could occur that you have a published document in English and a Chinese patent is granted to a third party, you would have to initiate a reexamination/nullity process in China to get that patent revoked, which is costly.

In China you are allowed to request both a utility model and a patent, and unless this has changed recently (I do not think so but I am not sure), you should do so by filing both on the same date, either as a direct national filing, or claiming priority from a previous patent application via Paris Convention (not through PCT route). If you do not file them on the same date, the application filed later will not be novel over the earlier filed one, even if you claim priority from said earlier application.

To keep costs to a minimum, you would have to directly contact a Chinese IP law firm that can assist you in the filing and prosecution of the patent application and/or utility model rather than doing it through an IP law firm from another country since quite probably that would increase the overall cost (it would depend on the rates of the Chinese patent attorneys hired by you and by the IP law firm from another country).

Bear in mind that patent protection is a matter of national law, therefore in countries in which there is no national patent granted in principle the device may be used and produced.

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I do work with startup companies. One way they handle this sort of thing is to keep the invention secret while attempting to obtain funding. To do this, you have to execute confidentiality agreements with potential investors. If the investors agree to back the invention, then you can use part of that funding to file for patent protection. The reality is that without sufficient funding, you will never be able to effectively market a product. The cost of patenting is only part of that necessary funding.

As George White states, there is no way to keep others from patenting an invention while keeping it secret. If someone else gets the same idea, they can file for a patent. If their application is filed before yours, they win and you lose. If you publish your invention publicly, it becomes prior art and should keep anyone from patenting it (including yourself). There are some nuances in that some countries have grace periods, but generally that is how things work.

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The idea of mailing it to yourself and not opening the package has absolutely no value and never has.

There are many resources on the internet and in libraries that you can learn the basics of intellectual property from - particularly the difference in copyrights, trademarks and patents. There are two kinds of "protection" one, is protection from someone else patenting it and them keeping you from making and selling your product. To do that you can publish information about your product on the internet. There is discussion of that here and also in previous Ask Patent q and a's. There are some sites that are specifically used to disclose inventions. This can prevent others from getting a patent, but it will also prevent you from getting a patent anywhere in the world except the U.S. and it will prevent that at the end of one year.

To stop someone else from making, selling, importing, etc. your invention in/into the U.S. you do need an issued patent. You might look into filing a U.S. provisional application. You can do it yourself but it is unlikely to have much value unless you put a lot of study into it. I recommend the book Patent it Yourself by Pressman.

Regarding money to protect your idea - it will take money to put it into production and it will take money to properly market it. You may need a partner with funds and a business background and when you have that you might chose to put some of the money into protecting your IP.

  • Thanks George, yes tons of info on the net, but so many flakes out there, that's why I ask here ;) "- one, is protection from someone else patenting it and them keeping you from making and selling your product. To do that you can publish information about your product on the internet. " Would that be good enough for now? In a years time, I will have the money to get full patent etc... I'm Canadian and I live in Thailand now. – Bruno Vincent Aug 16 at 8:41
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    “This can prevent others from getting a patent, but it will also prevent you from getting a patent*“ forever on everything you published. – DonQuiKong Aug 16 at 11:38

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