We didn't patent a possible innovation before the release. What are the risks?

Question

Last year I joined a project started by a friend. He was working for some years on an electrical device and I helped him in many aspects. Recently, the "project" became a "sellable product". Everything was developed with no big money investments, but spare time and dedication.

Now that the product has been presented to many people, with some very good feedbacks, we are facing the fact that we never issued a patent for it. For many reasons:

• My friend actually had a time in which he considered this possibility, in early years when I was not part of the project. After speaking with a consultant, the idea was not considered to be innovative enough for a patent. But it worth saying that, first, in my opinion the consultant made a rough analysis and it would have been better to spend more time in this "research". Secondary, my contribution added some values/features that may have changed this initial evaluation.

• Money: we estimated the cost of having a consultant + issuing a patent in our country, then also in Europe or worldwide. We could have considered it as a big investment, but we both didn't have the possibility to afford it in easy way.

• Time: we have also received "discouraging opinions" about the efforts needed to issue a patent, in terms of time. Since we used our free time, we preferred to focus on the development of the technology.

As of today, we still don't actually know if we developed a "technology that worth a patent", but it is now public and the first beta testers find it useful. We are planning to establish a legal company in few months.

I'm worried if we missed a big opportunity by not having issued a patent.

What can be the risks for us in the short and long term? Let's pretend this is really an innovative thing, is our "business" already in danger for some reasons?

Finally, is it possible to patent our solution now that is public?

Answer 1

A US patent is still possible until one year after the first publication. Not many other countries offer this though - and with different time frames.

To the risk, well, if your product is easily copyable, it might be copied.

On the other stuff, yes, patents aren't cheap and can be discouraging and there is no promise that your application will be granted. On the other hand, sometimes they do protect your business. Think of it like an insurance. You hope you don't need it, but if you, you better have it.

Answer 2

Your reasons for not filing are understandable but have no bearing on patentbility.

You say that it has been exposed to many people. As another answer mentioned, for a U.S. patent there is a (limited) 1 year grace period from the first publication. The grace period is also started by a public exposure, demonstration, sale, and offer for sale. Public exposure can be triggered by telling one person without any understanding of confidentially. If all of the beta testers were told to keep the information confidential then your year would not yet have started.