A common fear among independent inventors is that someone will steal their idea. So, the inventor files for a patent as quickly as possible. Does this protect the idea? Yes, and no. First of all, consider that your application will be published by the US Patent and Trademark Office (USPTO) 18 months after the filing date of your application as per Title 35 United States Code. See this location for details. After publication, any person can request and will receive a copy of the application file. Since the patent is already on file, the inquirer cannot steal the idea, per se, but you should be absolutely certain that your patent claims are broad enough that the inquirer cannot make simple changes and circumvent your patent. This is one of the main assets that a patent attorney brings to the process. A good patent lawyer can be invaluable in ensuring peripheral claims are covered in your application. This can add a huge expense, though, to the individual inventor. You have to balance your means against value. Obviously, if you have invented something like a solar module with 85% efficiency, you need to borrow the money, seek investors, or otherwise take no shortcuts to protection.
So, let’s suppose you are awarded a patent and the legal “fences” (claims) are broad enough and high enough to prevent infringement upon your patent. Utility and Plant patents are protected for a period of 20 years from the date of the patent application. Design patents are protected for 14 years from the date of patent award. Today, we will not go into the differences in these patents since we want to focus on the business issue. So, by the time the patent is actually issued (usually 2 – 3 years after the application) your idea will be protected for a period of nominally 14 – 18 years.
This may seem like a long time but if the invention is complicated to manufacture or if the market is slow to mature, the patent termination date can be upon you before you get into full gear. At that point, you are no longer protected. (Example: generic drugs produced after the initial patent expires.) Thus, determining when you file for the patent is a business question of considerable gravity. You clearly want the life of the patent to last until you have captured or saturated the market. Thus, you may take the risk of delaying to file for the patent, but it is a risk.
You may also want to consider whether your invention can be called a Trade Secret. Often these are formulas, Coca-cola and Colonel Sanders’s recipe being the ones most often cited as examples. In this case, the secret is kept in the sealed mayonnaise jar inside grandfather’s coffin. Of which, more later.