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[jmccart]

My provisional patent 12 month period is rapidly approaching its end. Here is my number one concern. If someone does infringe on my patent, I'm too poor to sue them because I've just spent all my money on a non-provisional patent. Do I lose all my rights if I let the 12m deadline go by? Can someone else then get a non-provisional patent for my idea or make something close to my idea and sue me for patent infringement? I'm at the point I'll probably not get a non provisional patent. Just want to know if I continue to sell this product what protection do I have without a patent?

[Isaac]

My provisional patent 12 month period is rapidly approaching its end. Here is my number one concern.

A provisional application for a patent gives you no rights other than reserving a filing date for a future non-provisional application.   If you don't file that non-provisional within twelve months, you are in exactly the same position you were in 12 months ago. 

I'm too poor to sue them because I've just spent all my money on a non-provisional patent.

At the risk of being accused of flogging a deceased equine, a provisional application for patent gives you no right to sue anyone.  There is no such thing as a provisional patent.

[JimIvey]

Do I lose all my rights if I let the 12m deadline go by?

You lose all ability to use the filing date of your provisional application.  Whether you can still pursue a patent depends on other things such as when your invention is/was first used, offered for sale, or described in a printed publication (including paperless print, such as the Internet).

Can someone else then get a non-provisional patent for my idea or make something close to my idea and sue me for patent infringement?

Not legally if they got the idea from you.  If they came up with the idea independently, they can get their own patent.

I'm at the point I'll probably not get a non provisional patent. Just want to know if I continue to sell this product what protection do I have without a patent?

Probably not much protection at all.  But just because others can copy your invention doesn't mean that they will.  You might get lucky.

Regards.

[DogDayPM 9er9er9er]

My provisional patent 12 month period is rapidly approaching its end. Here is my number one concern. If someone does infringe on my patent, I'm too poor to sue them because I've just spent all my money on a non-provisional patent. Do I lose all my rights if I let the 12m deadline go by? Can someone else then get a non-provisional patent for my idea or make something close to my idea and sue me for patent infringement? I'm at the point I'll probably not get a non provisional patent. Just want to know if I continue to sell this product what protection do I have without a patent?

Edited to add:  Hadn't seen Jim's earlier post when I came back and posted mine.  Please ignore anything below that's repetitive of his post.

A quick timeline with comments:
  - provisional application: never becomes a patent and never publishes, but holds a 1-year option for you to file a "real" patent application that gets to claim the date of the provisional application filing.
  - "real" application:  may become a "real" patent someday (usally in the 2-6 year time frame).  If filed within a year of a provisional application disclosing the same information, the "real" application can claim priority to the provisional and thereby have an effective filing date a year earlier than the date it was actually filed.


So, if you do not file your real application by the deadline:
   - You lose the right to claim last year's provisional filing date as the date of your real patent application.  As mentioned above, the only right a provisional app gives you is the right to claim the provisional filing date as your real application's filing date.
   - But you can still file your real application at any time (assuming it or something obviously similar doesn't get disclosed somewhere else in the interim), but the fililng date will be the date you actually file it. (see bold below)
   - If you never get a patent granted, then if someone else comes up with the same idea and starts selling it, then you have no rights to stop them.
   - And if someone else independently invents the same invention, then yes, they can file a patent application for their (your) invention, which may in the 2-6 year time frame be granted as a patent. (see bold below)
   - And if they get a patent, and if you begin making or selling the product they have claimed in their patent, then yes you are infringing. 


Are you already making/selling the product?  I wasn't sure if by "continue to sell" you meant you are now actually selling the product, or if you were projecting into the future.  If you're already selling then it is already publicly disclosed, and so the "someone else" we've been talking about can't (validly) patent it after the fact.  And if you have publicly disclosed the invention, then your "real" application must be filed within 1 year of the public disclosure or you forfeit the right to patent it.


What's the value in a patent?  You mentioned that if you paid for the real application then you wouldn't have money left to sue an infringer (jokingly, I assume, given the difference in costs).

For many academic types, it can be a nice feather in the cap (and entry on the CV).  That's a sort of intrinsic value that's hard to put a number on. 

For businesses, there's the value of creating (for at least the term of the patent) some barriers to competitors, where the competitors either stay out of the market entirely (very rare) or have to spend time and effort designing a non-infringing competing product (which may then often be a "second best" product).  Or if competitors do infringe, they sue and if the moon and stars line up right, get a nice chunk of money as damages and/or an injunction taking the competitor off the market.

So, what's the value in your (prospective) patent?  Certainly a feather in your cap, right?  You'll have to decide what that's worth to you.  But what about its potential value to businesses?  Is the invention something that a business could easily pick up and market?  A high quality patent broadly covering a highly marketable product (note the 3 strong qualifiers) may be something a business would purchase or license from you.  (Or is it just the 28th product that helps us microwave bacon?)

The average patent is actually of very little monetary value, because many if not most patents are for inventions that never see the marketplace. 

[davekorpi]

Hey guys.... The USPTO is now, as of Dec 8, 2010, allowing folks to extend their provisionals another 12 months!
See this "Gift" I mentioned a little while back..
http://www.free-press-release.com/news-us-pto-s-gift-to-inventor-s-via-a-12-month-extension-for-provisional-patent-applications-1292056312.html

What are you doing to SELL your idea?

Call me at 831-455-0418 if you have questions!

Thanks,

Dave Korpi in California...

[JimIvey]

Hey guys.... The USPTO is now, as of Dec 8, 2010, allowing folks to extend their provisionals another 12 months!
See this "Gift" I mentioned a little while back..

Given the way most people use provisional applications, it's not a gift; it's a noose disguised as a necktie.  Don't drink the kool aid!

Regards.

[patentsusa]

I'd be a bit careful with using this pilot missing parts program described in the Federal Register on December 8, 2010.

http://edocket.access.gpo.gov/2010/pdf/2010-30822.pdf

You will have to file a non-provisional application in condition for publication and including a claim, declaration, and basic filing fee.  You will still have to make your foreign filing decisions within a year of filing of the first provisional application.

To avoid a risk of invalidity and unenforceability, this non-provisional, "missing parts," application should be written by an attorney.  If you file a do-it-yourself application as part of this program, and later decide to pay the rest of the fees (search and publication fees), there is a strong risk of having lots of problems with the application.  The problems will be part of the file history and may result in invalidity of any resulting patent.  Of course I always recommend that any provisional application be drafted as if it were a regular application to reduce risks of invalidity and unenforceability.

[ChrisWhewell]

Given the way most people use provisional applications, it's not a gift; it's a noose disguised as a necktie.  Don't drink the kool aid!

Regards.

You got that right.   Before provisional applications became available, I'd only rarely seen instances of inventors shooting themselves in the foot on their IP rights.

A bit more humorous, are some VC's, young spunky CEO's, and their VP underlings in management,  egocentrically convinced they're IP savvy, who blunder with provisionals.   Were it not for the fact that most of their inventions ultimately pan out to have little to no commercial value, there'd be a lot more sore heads running around.  A shotgun loaded with confetti is more effective than many provisional apps I've seen !!