Early-Stage Optimization of Patent Spend

When looking at patents, two of the most important aspects are 1) the filing date the invention was disclosed and 2) the level of detail describing the invention. When available capital is at a premium, it's difficult for early-stage companies to invest in filing for and prosecuting patents covering their core technologies. Further, while most companies have international aspirations, those markets have yet to be tested so selecting which countries to file for patent protection can seem like the luck of the draw to some. Once companies start disclosing or offering their inventions for sale, they lose the right to patent in many foreign jurisdictions and start a one-year grace period in the United States if they haven't already filed for patent protection.  

To maximize patent protection, companies should prioritize spend on patent preparation rather than filing fees and patent prosecution costs. A single patent application can include multiple inventions, which can be split into separate applications later. Instead of filing multiple patent applications, paying multiple filing fees, and prosecuting multiple patent applications in parallel, a company can file a single comprehensive patent application that includes multiple inventions with a single filing fee. The Patent Cooperation Treaty (PCT) allows companies to file a single PCT patent application and preserve foreign filing rights in more than 155 countries, many of which for 30 to 31 months without the need to prosecute the application.  

When spend is at a premium, a company should minimize prosecution and filing costs, and instead spend more on preparing a comprehensive and detailed patent application covering multiple inventions before selling or disclosing its inventions. This strategy allows the company to secure the earliest filing date for its inventions with the least upfront cost, thereby enabling the company to harvest from this patent application for years to come to build out broad patent rights in its technology. If foreign protection is desired, the company should file a PCT patent application to delay decisions as to which countries to file for several years while also delaying the costs of filing and prosecuting applications in those countries.