Changes in Patent Law and Kickstarter

I love Kickstarter as much as the next person. Friends and colleagues have used the crowd-sourcing platforms, and ones like it, it generate interest in various projects that were too nebulous or personal to fund directly.

However, there are some serious issues that any designer, inventor, or artist, should consider when using the platform.

But first, lets discuss some changes in the U.S. Patent law. (Something I have lectured about in Shenzhen for 2 years running).

On March 16, 2013, the U.S. moves to a "First Inventor to File" system. This is the creamy middle between the rest of the world's "First to File" system, and the old U.S. system of "First to Invent." The reasons for this change are detailed and boring, and largely have to do with large companies wanting to harmonize their patent dockets across global jurisdictions.

Fascinating you say! Well, you don't, unless you are a patent geek.  However, if you are a producer of "kickstarter-able" (an adjective denoting awesome concept stage project) items, this should interest you.

Why? Because, if you place your custom designed fixe bike lock on Kickstarter, and you have not filed for a patent (even a design patent), you are in trouble. There are two mistakes that you made by going to Kickstarter before going to the patent office.

Mistake 1 - by publishing on the Internet, you have FOREVER given up your right to get a patent in "absolute novelty" countries. So, your sweet bike lock concept? You can never get protection on that in Amsterdam because the EU is a "absolute novelty" system. You have to, if you want protection in Europe, (and investors and business partners love to see IP before they give Euros) you need to file for protection before disclosing the idea, even for designs.

Mistake 2 - By not filing an application, even a provisional application with just some drawings and the $75.00 fee to the USPTO, you have set yourself up to be beaten to the patent office.  Say, for example, that after you go live with your Kickstarter page, a unscrupulous individual in  "Asia" decides that your idea is pretty sweet. So he(or she, 'Pirate' is an equal opportunity profession) files a patent in the US based on your concept.

 In the old days, when you filed a patent, there would be something called an "interference" which would determine who of the pair of you was the first to invent. Since we have gotten rid of that system, the new procedure is called a derivation procedure. We have no idea how time and money intensive this procedure is, since it is brand new. Either way, you are going into the Patent Office and spending time and money you probably would have preferred to keep. All the while, this individual is flooding the market, and her bank account, with your concept.

So the two bits of advice I give to clients who want to go the crowd funding route is: 1 File SOMETHING at the patent office before you go live, and 2, after you have filed something place "patent pending" somewhere on your page.

I hope this help. As always, you got a question, you drop me a line.