A startup engineer once lost their entire U.S. patent rights due to a single PowerPoint slide shown during a pre-filing demo. The slide provided sufficient detail of their manufacturing process for the patent examiner to deem it an “offer for sale, “triggering the 12-month statutory grace period under U.S. patent law. By the time the company filed 13 months later, after more than one year had passed since the initial disclosure, it was permanently barred from protection. Their European and Chinese rights? Gone the moment that the projector turned on.

Patent timing isn’t about finding the perfect moment. It’s about understanding that three specific dates determine whether you own exclusive rights to your technology or whether your competitors get to copy it freely: the day you file, the day you publicly reveal anything, and the day someone else files first.

Under the America Invents Act’s first-to-file system, the inventor who reaches the patent office first wins, even if someone else invented the same technology months earlier. Lab notebooks and prototype dates won’t save you. While the U.S. provides a 12-month grace period after public disclosure, most other countries offer none. One conference presentation, one Kickstarter campaign, and one detailed investor pitch without a filing on record can cost you protection in major foreign markets, including China, the European Union, and Japan—which together represent nearly 40% of global GDP—as well as most other foreign jurisdictions with absolute novelty requirements.

Research demonstrates clear timing consequences: startups that file patent applications early are 6.4 times more likely to secure venture funding than those without patent protection. Companies holding both patents and trademarks see funding odds jump more than tenfold compared to businesses with no IP filings. But the inverse is equally valid. Delay too long, and you might file a patent application on technology you’ve already made public through your own marketing efforts.

This guide outlines when to file, based on your development stage, funding timeline, and competitive landscape. You’ll learn which business events should trigger immediate filings, how to balance provisional and non-provisional applications, and what to do if you’ve already disclosed your invention publicly.

When Do You Actually Need To Get A Patent?

File before public disclosure, before serious fundraising conversations that reveal technical details, and before competitors can file on similar technology. You don’t need a granted patent in hand on day one—but you need protection in process before revealing enabling details to anyone outside confidentiality agreements. Strategic timing in filing patent applications is crucial, as it can determine whether you secure or lose your rights.

Concrete triggers that should prompt immediate filing:

Planning to demo at a trade show or conference where attendees can see how your product works. Trade show presentations can constitute offers for sale or public use under USPTO interpretation, triggering statutory deadlines even when inventors believed they were only demonstrating concepts.

Launching a crowdfunding campaign on Kickstarter or Indiegogo. Posting product specifications or demonstration videos publicly can fatally jeopardize patent rights, especially internationally. The detailed descriptions required to attract backers are precisely the kind of enabling disclosures that trigger statutory deadlines.

Pitching to investors or partners with slides explaining proprietary algorithms, manufacturing processes, or technical architectures. While NDAs provide some protection, investors often refuse to sign them at early stages. Assume that any technical details in widely distributed pitch decks constitute public disclosure. File at least a provisional application for a patent first. This provides superior legal protection compared to relying on NDAs—provisional applications grant concrete, enforceable rights, whereas vague agreements may not cover all scenarios. Most sophisticated companies require inventors to file provisional applications before discussing inventions, protecting the company from idea-submission lawsuits and creating immediately monetizable assets for licensing, collateral, or balance-sheet value.

Sharing product specifications with potential licensees, manufacturers, or even friendly beta customers. Once someone outside your organization can access and use your technology without strict confidentiality obligations, you’ve potentially made a public disclosure under patent law. This is particularly critical if you’re requesting manufacturing quotes—even just getting a quote can trigger the “on sale” bar. In fields like semiconductors (TSMC tape-outs), medical devices, or custom electrical systems with long development cycles, requesting prototype manufacturing quotes starts your one-year clock immediately, even if you never actually purchase anything. Strategic inventors file provisional applications before any manufacturing discussions to protect their intellectual property.

Signing your first customer pilot or beta program, where users gain hands-on access to novel technology. Even if users are enthusiastic supporters of your company, their access could constitute public use unless carefully structured as confidential testing.

Filing a patent application before public disclosure is critical to preserving patent rights.

The business case for early filing extends beyond legal protection. Most inventors pursue utility patents as their primary form of protection because they offer the strongest legal rights and are the most commonly filed type. The USPTO reports average wait times of approximately 20 months for a first office action on patent applications filed without sophisticated, advanced prosecution strategies. For applicants relying on standard examination procedures, this means their invention stays in “patent pending” status for well over a year—a critical period to establish market presence while deterring copycats who see you’re serious about IP protection. However, strategic preparation and proactive prosecution approaches can materially compress these timelines for those positioned to deploy them.

Figure 1: This USPTO data shows the substantial backlog in patent examination—highlighting why strategic preparation from experienced counsel can compress timelines by 1-2 years compared to standard processing.

When To Get A Patent: Timing Your Application For Maximum Protection

A startup engineer once lost their entire U.S. patent rights due to a single PowerPoint slide shown during a pre-filing demo. The slide provided sufficient detail of their manufacturing process for the patent examiner to deem it an “offer for sale,” triggering the 12-month statutory grace period under U.S. patent law. By the time the company filed 13 months later, after more than one year had passed since the initial disclosure, it was permanently barred from protection. Their European and Chinese rights? Gone the moment that the projector turned on.

Patent timing isn’t about finding the perfect moment. It’s about understanding that three specific dates determine whether you own exclusive rights to your technology or whether your competitors get to copy it freely: the day you file, the day you publicly reveal anything, and the day someone else files first.

Under the America Invents Act’s first-to-file system, the inventor who reaches the patent office first wins, even if someone else invented the same technology months earlier. Lab notebooks and prototype dates won’t save you. While the U.S. provides a 12-month grace period after public disclosure, most other countries offer none. One conference presentation, one Kickstarter campaign, and one detailed investor pitch without a filing on record can cost you protection in major foreign markets, including China, the European Union, and Japan—which together represent nearly 40% of global GDP—as well as most other foreign jurisdictions with absolute novelty requirements.

Research demonstrates clear timing consequences: startups that file patent applications early are 6.4 times more likely to secure venture funding than those without patent protection. Companies holding both patents and trademarks see funding odds jump more than tenfold compared to businesses with no IP filings. But the inverse is equally valid. Delay too long, and you might file a patent application on technology you’ve already made public through your own marketing efforts.

This guide outlines when to file, based on your development stage, funding timeline, and competitive landscape. You’ll learn which business events should trigger immediate filings, how to balance provisional and non-provisional applications, and what to do if you’ve already disclosed your invention publicly.

When Do You Actually Need To Get A Patent?

File before public disclosure, before serious fundraising conversations that reveal technical details, and before competitors can file on similar technology. You don’t need a granted patent in hand on day one—but you need protection in process before revealing enabling details to anyone outside confidentiality agreements. Strategic timing in filing patent applications is crucial, as it can determine whether you secure or lose your rights.

Concrete triggers that should prompt immediate filing:

Planning to demo at a trade show or conference where attendees can see how your product works. Trade show presentations can constitute offers for sale or public use under USPTO interpretation, triggering statutory deadlines even when inventors believed they were only demonstrating concepts.

Launching a crowdfunding campaign on Kickstarter or Indiegogo. Posting product specifications or demonstration videos publicly can fatally jeopardize patent rights, especially internationally. The detailed descriptions required to attract backers are precisely the kind of enabling disclosures that trigger statutory deadlines.

Pitching to investors or partners with slides explaining proprietary algorithms, manufacturing processes, or technical architectures. While NDAs provide some protection, investors often refuse to sign them at early stages. Assume that any technical details in widely distributed pitch decks constitute public disclosure. File at least a provisional application for patent first. This provides superior legal protection compared to relying on NDAs—provisional applications grant concrete, enforceable rights, whereas vague agreements may not cover all scenarios. Most sophisticated companies require inventors to file provisional applications before discussing inventions, protecting the company from idea-submission lawsuits and creating immediately monetizable assets for licensing, collateral, or balance-sheet value.

Sharing product specifications with potential licensees, manufacturers, or even friendly beta customers. Once someone outside your organization can access and use your technology without strict confidentiality obligations, you’ve potentially made a public disclosure under patent law. This is particularly critical if you’re requesting manufacturing quotes—even just getting a quote can trigger the “on sale” bar. In fields like semiconductors (TSMC tape-outs), medical devices, or custom electrical systems with long development cycles, requesting prototype manufacturing quotes starts your one-year clock immediately, even if you never actually purchase anything. Strategic inventors file provisional applications before any manufacturing discussions to protect their intellectual property.

Signing your first customer pilot or beta program, where users gain hands-on access to novel technology. Even if users are enthusiastic supporters of your company, their access could constitute public use unless carefully structured as confidential testing.

Filing a patent application before public disclosure is critical to preserving patent rights.

The business case for early filing extends beyond legal protection. Most inventors pursue utility patents as their primary form of protection because they offer the strongest legal rights and are the most commonly filed type of patent. The USPTO reports average wait times of approximately 20 months for a first office action on patent applications filed without sophisticated, advanced prosecution strategies. For applicants relying on standard examination procedures, this means their invention stays in “patent pending” status for well over a year—a critical period to establish market presence while deterring copycats who see you’re serious about IP protection. However, strategic preparation and proactive prosecution approaches can materially compress these timelines for those positioned to deploy them.

Figure 1: This USPTO data shows the substantial backlog in patent examination—highlighting why strategic approaches exist that can compress timelines compared to standard processing.

Filing timing requires balancing two risks: filing too late may forfeit rights entirely, while filing too early before design stabilization may result in narrow coverage that doesn’t match your commercial product. The goal is to file as early as possible, once your invention can be fully described, but not before you’ve validated the core technical approach.

Patents matter most when your business model depends on proprietary technology. If you’re developing a medical device, novel software algorithm, specialized manufacturing equipment, or electrical engineering process, patent protection creates the exclusive rights that make your investment defensible. Research from Harvard and NBER found that startups adopting a “patent-first” strategy enjoyed significantly higher growth rates and were more likely to secure VC funding and successfully IPO.

Conversely, if your competitive advantage stems primarily from brand recognition or execution speed rather than technology, patents may take a back seat to other business priorities. The key is honest assessment: if technology creates your defensible moat, patent it. If not, your timing can be more opportunistic. The right time to file a patent application is based on a combination of business and legal factors.

How Patent Timing Works In A First-To-File System

Since March 16, 2013, when the America Invents Act took effect, the United States has awarded patents primarily to the first inventor to file, rather than to the first to invent. This shift fundamentally changed incentives, making calendar dates the deciding factor in priority disputes.

Under the first-to-file system, three dates matter above all:

• The day you file your patent application at the United States Patent and Trademark Office
• The day you publicly disclosed your invention (starting your 12-month U.S. clock)
• The day anyone else applies similar technology

To establish priority, your patent application must clearly define the claimed invention—specifying exactly what is being protected and distinguishing it from prior art.

Consider a concrete scenario: Two engineers independently develop similar battery technology in 2026. Engineer A completes a working prototype in March but waits until October to file. Engineer B finishes a smaller prototype in July and files a detailed application by August. Under first-to-file rules, Engineer B has the stronger claim—despite inventing later—because they filed first.

Engineer A’s meticulous lab notebook or proof of earlier conception won’t help if they filed second. The patent system grants rights based on the filing date and the protection period. The only limited exception would be if B derived the invention from A—essentially stole or learned it from them—triggering a complex legal proceeding called a derivation. But those cases are rare and hard to win. The practical rule is simple: be first to file.

Filing first also delivers immediate business advantages. Once your application is on file, you can claim “Patent Pending” status, which often deters competitors from developing anything too similar. Investors and partners view early filing dates as signals of savvy management. Speed demonstrates you understood IP’s importance and acted decisively.

Here’s why speed matters even more under first-to-file: if you discuss an invention with anyone who might rush to file before you, their application will beat yours even though they learned it from you. Technically, they wouldn’t be the actual inventor, and you could challenge them, but you’d much rather avoid that fight entirely by filing first.

Standard USPTO examination processes typically result in an average wait time of 20 months for initial examination when applications lack strategic preparation from the outset. Because of first-to-file, spending that waiting period in “patent pending” status is far preferable to having no filing at all. Companies advertise “patent pending” status to deter competitors during the examination period. Advanced prosecution approaches can compress these examination timelines when deployed strategically.

File as soon as you can. Describe your invention well, even if you’re still refining details. And definitely file before any public reveal. In a first-to-file system, an hour’s difference in filing time could determine who gets the patent if two inventors are racing.

One critical nuance: The U.S. offers a 12-month grace period for your own disclosures, but none for someone else’s. If a competitor publicly discloses similar technology before you file, that becomes prior art against your application immediately. A 2024 study found that some companies, realizing they can’t file first, rush to publish their invention in journals or online to prevent competitors from patenting it—a defensive move that also forfeits their own patent rights.

Your internal documentation—lab notebooks, invention disclosure forms, meeting notes—remains useful for proving inventorship in derivation cases or demonstrating who created what when ownership is disputed. But in terms of who gets the patent, the U.S. joined the rest of the world in awarding it to the first inventor to file a sufficiently detailed application. Focus on reaching the patent office promptly rather than relying on being first to invent.

Public Disclosure Deadlines: The 12-Month U.S. Clock And Zero-Grace Foreign Rules

In the U.S., you have a 12-month grace period after your first public disclosure or offer for sale. In the United States, you have one year after public disclosure to file a patent application before your rights are forfeited. In most other countries (foreign country jurisdictions), you have no grace period at all—you must file before any public disclosure to preserve foreign rights.

Public disclosure means any non-confidential revealing of the invention’s technical details:

• Publishing academic papers, preprints, or thesis documents describing your invention
• Posting demonstration videos or detailed product explanations on YouTube, social media, or company websites
• Listing a product for sale with technical specifications or images showing the invention’s operation
• Launching a mobile app or web service where users can experience the unique algorithm or method you plan to patent
• Presenting at conferences or meetups without NDAs—even a single slide with enabling information counts
• Offering the invention for sale or accepting pre-orders, even if no one actually purchases it

If you disclose enough for someone skilled in the field to understand and reasonably reproduce the invention, the clock starts. The U.S. 12-month grace period only covers your own disclosures or those derived from you. If a third party publishes similar technology, you cannot claim grace on that—it becomes prior art immediately. Outside the U.S., any public disclosure before filing generally destroys your rights.

Here’s how grace periods vary across major jurisdictions:

United States: 12-month grace period after inventor-originated public disclosure, offer for sale, or use. You must file within one year of the event to obtain U.S. protection. Significantly, if someone else independently discloses the same invention before you file, that can block your patent unless your filing predates their disclosure.

Europe (EPO member states): No general grace period. Absolute novelty is required. Any public disclosure before filing will usually invalidate a European patent. The only narrow exceptions are disclosures deemed “evident abuse” (someone stole your idea and published it) or if you showed the invention at an officially recognized international exhibition, which triggers a six-month grace period. These exceptions are minimal; in practice, assume a zero grace period in Europe. Most foreign jurisdictions immediately lose patent rights upon a first public disclosure, public use, or offer for sale. For information on the significance of the order in which inventors are named on a patent, see this guide.

China: No general grace period for commercial disclosures. China allows a six-month grace period only in limited circumstances—first disclosure at specific international exhibitions or academic conferences, or disclosure made without the inventor’s consent. Routine product launches or sales do not receive forgiveness. File before public disclosure for China. Most foreign jurisdictions immediately lose patent rights upon a first public disclosure, public use, or offer for sale.

Japan: Six-month grace period with procedural requirements. Recent legal changes have made it easier, but you generally must file a document to note the disclosure. The grace covers academic presentations, specific exhibitions, or unauthorized disclosures. Still safer to file first.

Canada, South Korea, and Australia: Many offer six- or 12-month grace periods similar to those in the U.S., but rules vary. Canada mirrors the U.S. with 12 months. South Korea offers a 12-month window for inventor disclosures, with exceptions. Always verify specific country requirements if relying on grace periods.

To illustrate the stakes: Public disclosure at major trade shows like CES triggers immediate consequences under absolute novelty jurisdictions. A January 2027 demonstration would preserve U.S. rights until January 2028 but would permanently forfeit European and Chinese protection unless filed before the demo.

The safest approach is always: File first, disclose second. If international markets matter, get your U.S. application filed (provisional or non-provisional) and consider filing an international PCT application before going public. Many companies coordinate patent filings literally days or hours before major PR launches or conference presentations. It’s common to see press releases announce “patent pending” on launch day—indicating the patent was quietly filed shortly beforehand.

What if you already disclosed accidentally? Act immediately. If you’re within 12 months of that first disclosure, you can still file in the U.S. and other grace-period countries. Consult a patent professional immediately to salvage what remains possible. They might advise filing a U.S. application immediately and, if applicable, a PCT filing in the same year to keep some foreign filing options open. But Europe, China, and other jurisdictions of absolute novelty will likely be off the table. IP firms note that entrepreneurs often inadvertently lose foreign patent rights by posting too much on crowdfunding platforms or in early marketing materials.

Internal or confidential disclosures under signed NDAs do not constitute public disclosure, provided the information remained confidential. NDAs can buy you time. But NDAs can be breached, may not cover all scenarios, and many investors won’t sign them. Use NDAs with partners and early employees, but don’t treat them as substitutes for timely patent applications. An NDA is a protection layer, not a replacement for filing.

How Ready Should Your Invention Be Before You File?

Your patent application must teach a person of ordinary skill in the art how to make and use your invention without “undue experimentation.” This is the enablement requirement under 35 U.S.C. §112. In plain terms, your disclosure must be detailed enough that a skilled person could actually implement the invention based on your description, without needing to do inventive work on their own.

The USPTO does not require physical prototypes for patent applications. Paper designs, CAD drawings, or detailed written descriptions suffice, as the U.S. moved away from requiring working models in the 19th century, except in rare cases

However, “pure idea” is insufficient. Filing when your concept is too abstract or lacks key details will result in weak patents or rejection. You need to describe:

• The core inventive concept and what problem it solves
• Specific components or steps involved in carrying out the invention
• How elements interact or cooperate to produce the desired result
• At least one working example or implementation method, including enough details that others could do it—this could be a prototype you built, a tested algorithm, experimental data, or even a well-drafted hypothetical example.

Ready means you can teach someone else how to practice your invention. If you can only describe the goal (“an AI that cures disease” or “a device generating free energy”) but not the means to achieve it, it’s too early. You need more than a mere idea—you need an embodiment of the concept.

A good self-check is the undue experimentation test: could a skilled professional build your invention from what you’ve written, without having to do inventive research themselves? Some routine engineering or tinkering is fine, but if they need to conduct significant R&D, your application likely isn’t enabling that.

For complex inventions—electrical systems, mechanical devices, advanced software, or medical device technologies—you usually want proof of concept before filing a complete non-provisional application. For electrical or mechanical devices, this might mean experimental data demonstrating that the system works as intended. For software, it might mean working prototypes or tested algorithms of critical components. Why? Because if you patent an idea that later doesn’t work, you’ve wasted time and money on an invalid or useless patent. Data can also strengthen your application by demonstrating utility.

You can file on inventions that aren’t fully built yet, as long as you can describe how to make them. Many high-tech patents are filed when inventors have simulations or designs, but perhaps not commercial prototypes. For example, if you’ve designed a novel electrical circuit via CAD and tested one critical module, you can file the design even if the first complete prototype is still in progress—provided your description is thorough.

One critical tip: include foreseeable variants and alternatives in your initial filing. If you’re reasonably sure you might implement the invention in different ways (wired vs. wireless, aluminum vs. titanium, a chemical process at 50°C vs. 100°C), mention those in the patent application. A well-drafted application should cover the broad concept and multiple embodiments, not just one narrow example. This approach prevents competitors from designing around your patent and avoids the need to file new patents for trivial changes.

Patent drafters are trained to include “alternative embodiments” and variations precisely to strengthen patent scope. For instance, if your invention is a device with a sensor and you plan to use either an optical or a magnetic sensor, specify both. If you only mention one and later switch, the new version might not be covered by your original patent—or worse, someone else could patent the variant you omitted.

File when you can enable and support your claims. Avoid filing when the idea is purely high-level or speculative. But also don’t wait for perfection—you don’t need a finished product or even a prototype as long as your disclosure teaches the invention. The USPTO explicitly states that no prototype is required to file a patent. In legal terms, a well-written patent application itself counts as a “constructive reduction to practice,” meaning it’s as good as having built it on the filing date.

Don’t let the pursuit of a perfect prototype delay you past critical deadlines. If public disclosure or competitor activity is imminent, it is better to file early with the best information you have rather than risk missing the opportunity entirely. You can always file improvements later. But if you file too early with a very incomplete application, you might end up with a narrow patent that doesn’t cover your final product—or create prior art against your later filings.

File as soon as you can, and train others to implement your invention. Don’t wait for a polished prototype if you can describe it now—but don’t file when all you have is a dream with no concrete details.

Choosing Between Provisional And Non-Provisional: When Each Makes Sense

Before deciding between provisional and non-provisional applications, it’s essential to understand that there are three types of patents: utility, design, and plant. Utility patents cover new and useful inventions, processes, machines, or compositions of matter. Design patents protect the unique visual qualities of a manufactured item.

There’s a necessary clarification about terminology: there’s no such thing as a “provisional patent”—only provisional applications for patent. Think of provisional applications like stock options: they give you limited rights for a set time period that expire unless you exercise them by filing a complete non-provisional application within 12 months.

A provisional patent application is a temporary, lower-cost filing that establishes an early filing date but is not itself examined or issued as a patent. It expires after 12 months. Think of it as a strategic placeholder.

A non-provisional patent application (utility patent application) is the formal application that an examiner will review, that requires claims, and that can mature into a granted patent.

A provisional application often serves as a practical first step for resource-constrained inventors:

Securing an early priority date: A provisional lets you file sooner than you might if you had to polish a full non-provisional. You can quickly document the invention with as much detail as possible, including drawings, and file it to lock in a filing date. In fast-moving fields, getting an early date can be critical.

“Patent Pending” status on a budget: With a provisional on file, you can immediately mark your product “patent pending.” The USPTO doesn’t publish Provisionals unless you later reference them in a published non-provisional, so you maintain secrecy while gaining pending status.

Lower upfront cost and formality: Provisionals require less upfront investment and often less attorney time, since no formal claims or an inventor oath are needed. For cash-strapped startups, this defers costs. It buys 12 months to find funding or assess the invention’s value before investing in full patent prosecution. That said, quality professional preparation typically costs several thousand dollars—an investment that can prove valuable when strategic preparation helps compress examination timelines and strengthen claim scope.

Flexibility to refine the invention: Because provisionals don’t get examined, you have up to one year to make improvements or changes and include those when filing the non-provisional. It’s common to file a provisional early, continue R&D, and when filing the non-provisional a year later, update the text to reflect the “best mode” or enhancements discovered during that year.

Aligning with business milestones: A provisional is often timed before a major public event (product launch, investor pitch, trade show). It lets you file without the whole legal budget required for a non-provisional, helping businesses coordinate R&D tax credits with a patent protection strategy. Filing provisional applications can align innovation spending with both IP development and tax benefits. Thompson Patent Law partners with Paychex to provide free R&D tax credit assessments that help maximize both patent value and tax advantages from innovation investments.

The downside: provisionals are only temporary. You must file a corresponding non-provisional within 12 months of the provisional’s filing date to keep the benefit of that early date. If you miss that deadline, the provisional lapses into secrecy (never published), and you can no longer claim that early priority date. Provisionals add an extra deadline to your docket. You also need to be careful: the provisional must adequately describe the invention, because only what you described is protected by the early date. If you file a thin provisional and add new matter later, the new matter doesn’t get the benefit of the provisional date.

A non-provisional application makes sense as an immediate filing when:

The invention is well-developed and unlikely to change significantly. If you’re confident in the finalized design or method, skip the provisional and go straight for the non-provisional. This starts the examination process sooner and can lead to an earlier patent grant.

You’re ready to invest and disclose the information required for a non-provisional application. Non-provisional applications generally publish 18 months after filing (unless you opt out, forfeiting foreign filing rights). They need professional preparation. If you have the budget and know this invention is a priority, filing the whole application from the start is straightforward.

The business case is validated. For example, you filed a provisional application and, over the next 6-12 months, acquired pilot customers, investor interest, or data demonstrating the invention’s market value. Now you’re confident it’s worth investing in a strong non-provisional application with carefully crafted claims. You’d convert that provisional into a non-provisional by filing a new application that “claims priority” to the provisional.

You want the examination clock to start. A non-provisional filing starts the examination process. The USPTO will queue it for review. If you only file a provisional, the clock to get a granted patent hasn’t begun—you must file the non-provisional later and then wait for examination. Some companies eager to obtain a granted patent (for investor or partner signaling) might file a non-provisional immediately and even request expedited examination.

In practice, many inventors use the provisional → non-provisional sequence. File a provisional application to obtain the early date and “patent pending” status, then, within 12 months, file a more polished non-provisional application. Just be mindful of deadlines: if you file a provisional in May 2026, you must file the non-provisional by May 2027 that correctly references the provisional, or you lose that early date and effectively start over. The USPTO doesn’t send reminders—it’s on you or your attorney to track it.

A note on statistics: Historically, 40-50% of provisional applications are never followed by a non-provisional filing. Many inventors file a provisional and then decide not to proceed (perhaps the idea wasn’t as promising, funding fell through, or priorities changed). This isn’t necessarily bad—it shows the provisional did its job as a low-cost test. If the project fizzles, you haven’t spent heavily on a complete patent. If it takes off, you convert the provisional to a real application. Provisionals should be taken seriously (write them well enough to be enforceable), but also recognized as somewhat preliminary. Don’t file and forget—plan the follow-up.

Use a provisional when you need speed, lower cost, and flexibility—but have a game plan for the next 12 months. Use a non-provisional when you’re ready to fully commit to patenting that invention and want to get the examination clock ticking.

If international protection is a goal, you might file a U.S. provisional application first, then, at 12 months, file a PCT (Patent Cooperation Treaty) application instead of, or in addition to, a U.S. non-provisional. The PCT allows you to file a single application that can seek protection in multiple countries, streamlining the process and reducing complexity. A PCT is a single international application that effectively delays the need to file in individual countries by another 18 months (30 months total from your first filing). By 2024, inventors worldwide filed approximately 273,900 PCT applications—a record high reflecting the PCT’s importance in managing international patent timing. The PCT gives you up to 2.5 years from your initial filing to decide which countries to pursue, while keeping your priority date worldwide.

Timing your provisional versus non-provisional filings should align with your development and business milestones. A typical startup strategy: file provisional early → test the market or technology → file a robust non-provisional within 12 months (and possibly a PCT to keep global options open). This maximizes priority while minimizing upfront cost and adapting to any changes in the invention.

Business Milestones That Should Trigger Patent Filing

Strategic patent timing aligns IP protection with business milestones rather than arbitrary filing schedules. Rather than filing arbitrarily, they time patent applications to leverage key business events:

Fundraising rounds: Whether it’s seed or Series A/B with VCs, if you’re about to share detailed technical information with investors, have at least a provisional on file. Investors ask, “Do you have IP protection?” and “patent pending” is far better than “we’ll do it later.” It also prevents any unscrupulous party from patenting your idea (rare but not impossible). Pitching without a filed patent can constitute public disclosure if presented to many people, so treat major pitch events as a deadline to file.

Product development milestones (MVP, beta launch): When your team completes the minimum viable product that embodies the core invention, that’s an excellent point to file—you now have a concrete understanding of the invention. Similarly, right before a beta launch, when external users will interact with your technology, is a smart time to file, before they access it.

Entering partnerships or manufacturing contracts: If you’re about to share schematics with overseas manufacturers or enter joint development agreements, secure your IP first. Once CAD files or source code leave your organization, even under NDA, risk increases. Filing a patent application gives you recourse and may deter partners from considering IP misappropriation. Many partnership contracts have IP clauses—having filings in process strengthens your position in negotiations (you can more clearly delineate background IP).

Academic publication or conference presentations: For startups with research ties (biotech, university spin-offs), coordinate patent filings with publications. Standard practice is to file a patent application just before submitting a paper for publication or presenting at scientific conferences. This way, when the paper comes out (a public disclosure), your patent priority is already established. Universities are strict about this: technology transfer offices insist on patent filings before faculty publish results. As an inventor, adopt the same discipline.

First customer or commercial sale: As soon as you’re about to make a first sale or even offer your product for sale, ensure patent filings are in place. In the U.S., an offer for purchase triggers the 12-month clock, and in many countries, it bars patents immediately. If you’re planning to start taking orders (even pre-orders), file first.

Internal R&D breakthroughs: In fast-moving fields like semiconductors, batteries, AI algorithms, or autonomous systems, your team might hit several inventive milestones over a year. Rather than waiting to bundle everything into one patent, a good strategy is to file incrementally. For instance, file a provisional on your v1 prototype. Three months later, if R&D finds a significant improvement or new feature, file another provisional on that. Later, combine these into a single non-provisional application or keep them separate. This way, each innovation is locked to a date. It’s common in fields such as software and automotive to have multiple provisionals feeding into one or more non-provisionals as the product evolves.

Roadmap alignment: Review your product roadmap 1-2 years out and align patent actions with it. If you plan to launch “Launch 2.0 with a major new feature in Q4 next year,” you might file a patent on that feature by Q3 this year (well before launch and disclosure). By integrating IP with the roadmap, you avoid last-minute scrambles and ensure you’re consistently protecting what’s core.

To illustrate: Consider a startup developing a novel IoT sensor. They finalize the core sensor design in Q3 2026 and file a provisional application then. They spend Q4 testing and refining, and perhaps file a second provisional in early 2027 to incorporate improvements. By mid-2027, they’re ready for manufacturing—file the polished non-provisional around that time (within 12 months of the first provisional). Then they launch the product broadly in late 2027. This sequencing ensures that every stage is protected without undue delay or overlap.

Another helpful tool at certain milestones is the Patent Cooperation Treaty. If international markets are potentially valuable but you’re unsure which ones, you can file a PCT application within 12 months of your earliest filing. The PCT won’t itself become a patent, but it buys up to 18 additional months to enter individual countries. During that time, you might raise a new funding round or assess which markets are gaining traction. For example: file U.S. provisional → 12 months later file PCT → by 30 months decide to enter U.S., Europe, and China national-phase filings. The PCT is a way to align patent spending with business growth—you defer heavy foreign filing costs until you’re more certain.

Aligning patent timelines with milestones helps maximize ROI. You spend money on patents when they’re most impactful: when you’re about to expose the technology or when you need credibility. It also impresses stakeholders. Investors like seeing that a startup has an IP strategy tied to its business plan (e.g., “We file patents when we hit key tech milestones to protect our progress”). It shows you’re building an asset portfolio, not just operating day to day.

Patent timing in fast-moving industries often results in multiple filings. It’s not one-and-done. Industries such as software, AI, and electronics may see iterative innovation. Some companies file provisional after provisional as they improve a design, then file a comprehensive non-provisional that covers the cumulative innovation. This can be more cost-effective than filing a new non-provisional application each time something changes. It also keeps competitors guessing, as provisionals remain confidential unless referenced in a published application.

Patents can also significantly impact exit outcomes. A 2022 analysis found that startups with patent or trademark filings were much more likely to achieve a successful exit (IPO or acquisition) than those without IP. Having at least one form of IP made a startup over twice as likely to be acquired or go public, and holding both patents and trademarks more than tripled the likelihood of a successful exit. Well-timed patent filings don’t just protect the product—they significantly increase a company’s attractiveness to acquirers and investors in the long run.

Filing a Patent Application and Costs

Filing a patent application is a significant investment in your invention’s future, and understanding the costs and options involved is key to making informed decisions. The process begins with preparing and submitting your patent application, which can be a utility patent application (covering new and useful processes, machines, or compositions of matter) or a design patent application (protecting the ornamental design of a functional item). Each type of patent offers different forms of protection and has its own requirements.

The costs associated with filing a patent application can vary widely. Government filing fees are just the starting point—expect to pay additional attorney fees for drafting and prosecuting the application, as well as fees for professional drawings that meet USPTO standards. For utility patents, total costs typically range from $8,000 to $15,000 for straightforward applications, with complex technologies requiring $15,000 to $25,000 or more, depending on technical complexity, claim scope, and drawing requirements.

Strategic filing sequences maximize protection while managing costs: provisional applications establish early priority dates at lower cost, non-provisional applications enable examination and grant, and foreign applications protect key international markets. Each additional filing increases costs but can significantly enhance your ability to defend your invention and maximize its commercial value.

Filing provisional applications can also align innovation spending with both IP development and tax benefits. Thompson Patent Law partners with Paychex to provide free R&D tax credit assessments that help maximize both patent value and tax advantages from innovation investments. This coordination helps offset the costs of strategic patent protection through enhanced R&D tax credits available under current tax law.

Careful planning and consultation with a patent professional can help you balance the costs and benefits of each type of application, ensuring you obtain the right level of protection for your invention and business goals.

What If You Wait Too Long (Or File Too Early)?

Both procrastination and premature filing create real risks. If you wait more than one year after a public disclosure or offer for sale, you may lose your rights entirely. In the United States, you have one year after a public disclosure to file a patent application before your rights are forfeited. Consequences range from losing rights entirely to wasting money on filings that don’t cover your actual commercial product.

Consequences of Filing Too Late

Missed 12-month window: In the U.S., if you go beyond 12 months after a public disclosure or offer for sale, you are statutorily barred from getting a patent under 35 U.S.C. §102(b)(1), with no procedural exceptions. Inventors who are unaware of this sometimes approach attorneys after the year has passed—at that point, it’s usually too late for that invention. The patent system’s attitude: “You had a year to file, and you didn’t, so the public is now entitled to that invention.”

Loss of foreign rights: If you publicly disclosed even one day before filing, you’ve lost most foreign patent rights (Europe, China, etc.). There’s no grace period to save you. This is a common, regrettable scenario: a startup launches a product to gain market traction and only later realizes it should file patents—by then, it’s too late in Europe because the launch was public. Once you’ve waited too long, you cannot reverse international losses.

Competitor beats you: Perhaps the scariest outcome—you delay filing, and someone else independently invents and files a patent on the same idea before you do. Under first-to-file, their application will preclude yours. Even if you eventually file, and even if you invented earlier, you’ll likely get rejected because their filing is prior art against you. In rapidly evolving fields (as in two AI researchers solving the same problem months apart), the first filer gets the patent, while the other is left with nothing. If you delay, you lose.

Your own disclosure becomes prior art: If you’ve been publicly discussing or selling the invention and you wait over a year, those very disclosures become prior art that can be used to reject your patent if you do file. You can literally be your own worst enemy. For example, if you presented a paper 18 months ago and then try to patent now, the patent examiner will cite your paper and say the invention isn’t novel (because you described it there). You created an irreversible public record.

Missed opportunity for secrecy versus patent: Sometimes, inventors delay filing, thinking they might keep the invention as a trade secret. But if you’ve disclosed it anywhere, you lose trade secret protection. If too much time passes, you might end up with neither patent nor trade secret—the invention falls into the public domain. Early consultation with a patent attorney can help determine whether a patent or a secret is the right path, but delaying often eliminates the patent option.

If you approach the 12-month deadline (e.g., month 11 after disclosure), consult patent counsel immediately to evaluate whether expedited provisional filing can preserve U.S. rights.

Downsides of Filing Too Early

Filing “too early” usually means filing before the invention was fully developed or before you had a clear view of the best implementation.

Incomplete disclosure limiting patent scope: If your patent application was filed when your concept was half-baked, you might not have described or claimed the aspects that turn out to be important. Later, when you finalize the design, you may find that the patent you filed doesn’t actually cover the preferred embodiment or the commercially valuable version. You can file another application to cover improvements. Still, your own earlier patent publication can become prior art against your new application in some cases (particularly outside the U.S. or if improvements aren’t fully supported in the first filing). This complicates the path to coverage.

Extra costs for follow-on filings: An early filing often results in additional filings. As you identify changes, you may file a continuation or a new application to cover them. Each costs more in attorney fees and USPTO fees. If you had waited and filed once, you might have those costs. For small entities, budget can be a concern—filing too early can lead to a cascade of incremental patents rather than one solid patent.

20-year patent term starts ticking: A patent’s term in the U.S. is 20 years from the filing date (or earliest priority date). If you file significantly before you actually commercialize, you effectively waste patent term. Suppose you file a patent in 2023, but your product doesn’t hit the market until 2028 (5 years of development/regulatory delay). Your patent expires in 2043, meaning you only got 15 years of market protection (2028-2043) instead of potentially 20. In less regulated industries, this might not be as long, but the principle stands: filing a year or two early can shave a year or two off the back end of protection.

Publication of sensitive information: A non-provisional patent application will be published 18 months after filing unless you file a non-publication request, which forfeits foreign filing rights. If you filed very early and the invention was not yet at market, you may be giving competitors a peek at your idea far in advance. They could start designing around your concept or even improving it while it’s still in development. Once it’s published, it’s out.

Possible confusion or IP clutter: An early patent that doesn’t reflect the final product can create legal clutter. For instance, you might secure Patent A on an early version, but your final product corresponds to Patent B (filed later). Patent A might end up being irrelevant—yet you spent resources on it, and it sits there, potentially complicating your patent landscape.

Investor perception if patent doesn’t match product: If you tout a patent to investors, but that patent covers a version of technology you’re no longer pursuing, savvy investors will notice. It’s not a huge problem (having a patent is usually better than none), but it’s not as impressive as a patent that directly covers your current product.

Optimal timing balances two competing risks: avoid filing at the pure idea stage when the invention remains a moving target, but don’t delay seeking perfection when core technical approaches are validated.

Many tech startups file a provisional on Version 1, knowing they will likely file another provisional or convert to a non-provisional with Version 2 improvements. That’s fine—it’s part of the game. They accept the cost of additional filings as the price of securing early dates. What you want to avoid is filing something so premature that it fails to enable the invention or misses key aspects—that could leave you with a weak patent that doesn’t actually protect you when you go to market.

If you realize you filed too early—say you filed a provisional and then the invention took a new direction—you’re allowed to file a new application with the updated material. You won’t receive the benefit of the new matter under the old date, but at least you can still pursue protection. Many companies do “re-do” filings. What you cannot do is add new matter to an already-filed application after the fact—that’s not allowed. You’d have to file a fresh application for the new matter.

The risks of waiting too long generally outweigh the risks of filing too early. The former can be an irreversible loss of rights. The latter can often be mitigated with additional filings (albeit at a cost). A common strategy: file early enough to secure rights, but if possible, use the provisional system to buffer slightly. That way, if you are too early, you can fix it in the non-provisional. And always build in a buffer before public deadlines—don’t cut it so close that an unexpected delay (illness, funding issue) pushes you past a bar date.

If you ever find yourself thinking “we disclosed X last year,” or “we’re about to disclose and haven’t filed,” it’s time for immediate consultation with your patent attorney. They can assess whether any rights can be salvaged and prioritize filings accordingly. It’s much better to have that conversation proactively before disclosures happen.

Working With A Patent Professional On Timing And Strategy

Patent timing isn’t just a legal technicality—it’s a strategic business decision that benefits significantly from professional guidance. An experienced patent attorney can be an invaluable partner in plotting when and what to file. Working with a patent attorney is highly recommended during the patent application process.

Mapping out a filing strategy: A good patent professional starts by asking about any past or upcoming disclosures. They’ll create a timeline of critical dates (past trade shows, planned product launches, publication submissions) and align it with patent filing deadlines. For example, if you mention “We demoed this to a non-confidential industry group 6 months ago,” they’ll flag the 12-month U.S. deadline and the fact that foreign filing must happen immediately (since foreign grace is nil). They can prioritize which applications need to be filed ASAP and which inventions can afford more development time.

Prioritizing inventions and budget: Small businesses often have multiple innovations but a limited budget. A patent attorney can help triage—determining which invention is most central to protect now, and which ones can wait or may not need patenting. They can also identify which type of IP is best (for example, keeping a trade secret for now, or using a cheaper design patent for a cosmetic feature).

Patent agents vs. patent attorneys: Patent attorneys are the essential choice for serious business owners—they’re licensed lawyers (state bar + USPTO bar) with comprehensive legal training who can advise on licensing, litigation, corporate transactions, and all IP matters. Patent agents are a limited option for those with severe budget constraints—they’ve only passed the USPTO patent bar. They are legally prohibited from providing any legal advice beyond filing paperwork with the USPTO. They cannot advise on licensing, infringement, strategy, or any legal matters. Patent agents are suitable only when budget constraints make attorney representation impractical. However, their limitations (no legal advice authority, limited paperwork filing) may prove costly in the long run when strategic guidance becomes necessary.

Provisional versus non-provisional advice: A professional will tailor recommendations to your situation. They might say, “This invention is pretty well-developed, let’s go straight to a non-provisional,” or conversely, “Time is short before your expo, let’s file a quick provisional now and work on a thorough non-provisional after.” They’ll also ensure the provisional is high-quality—a well-drafted provisional (with solid technical detail) can often be almost as effective as a non-provisional in securing rights.

Avoiding landmines of public disclosure: Your attorney will remind you to use NDAs and will say, “Don’t disclose that yet, or if you must, let’s get a filing in first.” They can also review presentation decks, crowdfunding pages, or research papers to tell you if you’re revealing too much. They’ll flag language that might constitute an offer for sale or an enabling disclosure. For instance, they might advise removing specific schematics from a deck until after filing.

Coordinating U.S. and international filings: Every country has quirks. A patent professional (especially those with international experience or foreign colleagues) can help time a global patent strategy. They’ll use tools such as the Paris Convention (which allows you to file a foreign patent within 12 months of filing in the U.S. and claim priority) or the PCT to streamline the process. They’ll also secure any needed foreign filing licenses (U.S. law requires getting a foreign filing license or waiting 6 months after a U.S. filing before filing foreign, to ensure no national security issues—your attorney handles those procedural details).

Patent searches and state of the art: Before spending money on filing, a professional might conduct a prior art search to see if someone else already beat you to the idea. This can influence timing—if the field is crowded, you may file a narrower patent or decide not to file at all on certain aspects, focusing resources on the truly novel part. Or if they identify a threat (such as a competitor’s recent patent application), they can adjust your filing strategy (for example, file faster or craft around it).

Ongoing portfolio management: As you grow, your patent counsel helps plan a pipeline. Big companies have formal invention disclosure programs, but even a startup can benefit from thinking ahead: what will we invent next quarter? Next year? It’s easier to budget and plan when you’re not doing everything at the last minute. Your attorney can also keep you apprised of changes in the law (e.g., if grace periods or rules change, or new programs to expedite patent applications become available).

For resource-constrained founders, an early consultation (even a brief one) with a patent attorney can save substantial headaches. Many offer initial consultations at no cost or at a low price. In that meeting, bring a timeline of events: when the prototype was built, the first public mention, any sales, and any planned announcements. Also, discuss business goals: is the goal to get acquired? To dominate a particular market? That helps them advise whether you should obtain a broad U.S. patent quickly or prioritize foreign rights in Europe and China.

Working with a professional doesn’t mean you lose control of timing—it’s a collaboration. You bring knowledge of upcoming business moves; they bring knowledge of legal deadlines and strategy. Together, you form a plan. For example, you might say, “We’re planning a demo in two months,” and they’ll say, “Great, we’ll file a provisional before then, and maybe fast-track a non-provisional after to get an early publication for investor signaling.” Or if you’re short on funds, they might suggest filing a single robust application covering two or three related inventions, rather than separate applications, to save costs (if that meets legal requirements).

A patent professional will also remind you of things you might not think about, like maintenance fees (patents require fees at 3.5, 7.5, and 11.5 years to keep alive) or design patents if your product’s appearance is essential. You’ll be revealing it (design filings should also be timed before disclosure of the design). They can advise you on whether a trade secret may be better suited to specific technologies (and how to maintain it) versus a patent, based on timing and detectability.

Involve your patent professional early and share your development timeline with them. You’ll get a tailored strategy that maximizes protection while fitting your budget and goals. The most cost-effective patent is often the one filed at the right time for the right invention, rather than filing everything or filing randomly. Your attorney’s job is to help figure out that sweet spot.

What to have ready for a timing strategy session:

• List of key dates: first public disclosure (or planned upcoming one), first sale, any bar dates you know of, product launch dates, investor meeting dates
• Technology summary: What are the distinct inventive concepts you have? (Sometimes multiple related inventions are happening; they can be split or combined into filings strategically)
• Business plan/markets of interest: if you aim for Europe and China, that affects timing (must file before disclosure). If you only care about the U.S., the grace period gives more flexibility (though first-to-file still urges filing quickly)
• Budget constraints: Be candid about what you can spend now versus what you can pay later. There are ways to stage filings (provisional now, fees later) that the attorney can adjust for
• Any existing agreements or obligations: if you have a government grant contract requiring you to file within a specific time, or an employer or university policy, bring that up. Also, if any co-inventors or prior employers might have rights, that’s part of the strategy (earlier filing can be crucial if ownership is contested)
• Competitive intelligence, if any: if you know a competitor is working on similar technology and might be filing patents, that raises urgency to file first

Patent strategy is part of a broader business strategy. Work with professionals who understand that patents are a means to an end (protecting your competitive advantage), and time your actions accordingly. With good advice, you can avoid the landmines of missing deadlines or wasting effort, and ensure your patent portfolio grows in tandem with your company’s innovations and needs.

FAQ: Common Questions About When To Get A Patent

Q1: Can I talk to investors before filing a patent application?

While NDAs offer some protection, many investors refuse to sign them—and a detailed, enabling pitch without any filing on record can count as public disclosure. The safest approach is to file at least a well-documented provisional patent application before sharing technical details with multiple investors. This secures your priority date and allows you to say your technology is “patent pending” during fundraising.

If an investor absolutely won’t proceed without an NDA and you haven’t filed yet, limit discussions to market opportunity, team capabilities, and business model rather than specific technical implementations or proprietary methods. But generally, seasoned entrepreneurs file first, then pitch. A detailed pitch deck circulated to dozens of investors could be considered a public disclosure if not under confidentiality, if it starts your 12-month clock, or, worse, gives someone else time to file first. Filing a provisional is relatively quick and provides stronger protection than NDAs—it establishes concrete legal rights rather than vague contractual promises. Before you enter serious fundraising, get your patent filings in order. It’s one less worry and a positive signal to investors that you’re on top of IP.

Q2: Do I need a working prototype before I file?

No, a working prototype is not legally required to file a patent application. The patent system cares about your ability to describe the invention so others can make and use it, not whether you’ve built it yet. Many patents are filed (and granted) for inventions proven through analysis or simulation, rather than physical prototypes. For example, a new electrical system might be patented after laboratory testing, or a new software algorithm might be patented before a complete product is built.

However, having a working prototype or at least some experimental data can be beneficial. In fields where it’s uncertain whether the idea will work (e.g., complex hardware or advanced software), a prototype demonstrates that the invention is feasible and functions as described. If you patent something that doesn’t actually work, the patent could ultimately be invalid or not very useful. Also, prototypes often teach you things about the invention you want to include in the patent.

A common approach is to file a provisional application once you have the concept and design, then continue prototyping and incorporate key findings into the subsequent non-provisional application. But don’t let the lack of a prototype stop you from filing if you’re otherwise ready. Legally, you just need to enable the invention on paper. If you can clearly explain how to make it and use it, you can file.

No, you don’t need a prototype in hand. But ensure your patent application provides sufficient detail for a skilled person to build a prototype. If you’re in high-tech fields, doing some proof-of-concept work before filing can strengthen your patent and reduce the risk that you’re claiming something unbuildable. And from a business angle, having a prototype can impress investors or partners—but that’s separate from the patent process. Some inventors choose to file first, then use “patent pending” status to attract investors to fund a prototype. Others prototype first to solidify the invention, then file for a patent. Choose what fits your situation, but keep that 12-month disclosure rule in mind if prototyping involves any public exposure.

Q3: What if I already presented my idea at a conference or posted it on social media?

Act immediately to preserve remaining rights. If you just presented or posted, you likely have not lost patent rights. Under U.S. law, you have up to 12 months from the date of first public disclosure to file a patent application and still get a valid patent. Identify the exact date and content of what you disclosed. That starts the clock. For example, if you gave a conference talk in March 2025 revealing your invention, you must file a U.S. patent application by March 2026. The content of what you disclosed is also essential: anything you disclosed becomes prior art after a year (and immediately in other countries).

For foreign patents, unfortunately, the news is bad: most likely, by presenting or posting publicly, you’ve already forfeited the right to patent that invention in jurisdictions like Europe, China, etc., unless your disclosure qualifies under a very narrow exception. Some countries have grace periods (e.g., Japan offers a six-month grace period if you follow specific steps), while Europe has none, except in cases of abuse or export. But generally, assume that once you’ve gone public, foreign rights are gone if you hadn’t filed beforehand.

The best course is to consult a patent attorney immediately. They can help determine exactly what was disclosed and if it’s still possible to file in various jurisdictions. Often, the strategy is to file a U.S. application (provisional or non-provisional) as soon as possible within the 12-month window. If it’s been only a short time since disclosure, you might still have foreign options via a PCT if filed within the same 12 months—but remember, that foreign filing will not save Europe/China if the disclosure was before filing (they don’t care about the U.S. grace for your own disclosure).

Partial disclosures may preserve patent rights for undisclosed aspects. Patent counsel can evaluate whether disclosed concepts provide sufficient detail to preclude patenting specific implementation methods or mechanisms not publicly disclosed. For instance, your conference talk may have mentioned the concept but not the particular mechanism—perhaps the mechanism can still be patented if it wasn’t obvious from the conversation.

The key is speed and diligence: you have a ticking clock for the U.S. and a likely closed window for foreign. It’s a salvage mission. Many inventors have been in this situation—you’re not the first. What separates success from failure is acting decisively once you realize the issue. Even filing something (a provisional) quickly is better than letting time slip by. Going forward, use this as a lesson: file before you publish. Academic inventors, for example, become keenly aware of this and work closely with tech transfer offices to coordinate patent filings with publications.

Q4: How do I know if my invention is patentable?

Patentability requires three elements under U.S. law: novelty (your invention must be new and not disclosed in prior art), non-obviousness (it cannot be an obvious variation of existing technology to someone skilled in the field), and utility (it must have a specific, credible use). A comprehensive patent search evaluates prior art against these criteria.

To determine if your invention is patentable, it’s essential to conduct a thorough patent search. This involves searching databases of granted patents, such as those provided by the USPTO, to determine whether your idea or a similar one has already been patented. Reviewing granted patents helps you understand what is already protected and can reveal prior art that may affect your application.

The patent process includes several steps: idea evaluation, patent search, drafting and applying, and examination. A comprehensive patent search is a critical early step to avoid wasting time and resources on non-novel inventions. If you’re unsure how to perform a patent search or interpret the results, consider consulting a patent attorney or using professional patent search services.

Q5: If I change my design after filing, am I still protected? International patent protection

You are only protected for what you disclosed and claimed in the patent application. Changes that fall within the scope of your original disclosure are usually fine; that original patent will not protect changes that introduce new matter not covered in the filing.

If the change is minor or foreseeable, and you wrote the application broadly enough to encompass it, then you’re still protected. For example, suppose your original patent application described a gadget made of aluminum, and later you switch to titanium. If your application specified “aluminum or other suitable materials” or wasn’t limited to aluminum, the titanium version is covered. Good drafting anticipates such variants.

If the change is significant and not included in the original disclosure, it’s outside the scope. For instance, say you originally patented a hardware-based solution, but later realize you can solve the problem entirely in software without a hardware component. That’s a pretty different implementation—if your patent only described a hardware circuit, it won’t cover a pure software solution. In that case, you’d need to file a new application for the software version.

One common scenario: you file on Version 1, and then Version 2 has new features. If those features weren’t in the text of Version 1’s filing, they’re not protected until you file again. Your claims in the issued patent (or application) define what’s legally protected. If your design changes in a way that the claims of your patent don’t read on it, then that patent can’t stop competitors from making the new version.

Product evolution typically requires follow-up patent filings to cover improvements and design changes not disclosed in original applications. What you want to avoid is a gap where your new product has aspects not covered by any patent, while your old patent covers only the outdated version.

If you suspect a pivot or significant change (like you initially patent a specific method but end up doing it a completely different way), discuss with your attorney whether the original filing can be written to cover both, or if you should file a second application. Often, as long as you do this before any public disclosure of the new design, it’s straightforward (just costs more).

Keep in mind, your own earlier patent publications can become prior art against a later patent on the changed design if you’re not careful with timing. For example, you file Patent A, it publishes 18 months later, and then you file Patent B on an improvement that wasn’t disclosed in A. Patent A (now prior art) could be cited against Patent B. There are ways to overcome this (e.g., shared ownership and filing within a year in the U.S.), but it’s a complication. It’s another reason to include as many variations as you can in the first application—to avoid your own publication limiting you later.

After filing, monitor your development. If you stray outside what you originally wrote, plan to file either a continuation-in-part (adding new matter) or a fresh application to cover the new material. Patent protection isn’t automatically elastic to cover anything you do—it’s bounded by what’s written. This is why patent attorneys often draft applications with language like “in one embodiment… in another embodiment…” or “the invention may alternatively include X”—to cast a wide net.

Inform your patent counsel of major design pivots. They can advise if it threatens coverage and whether a quick provisional on the new approach is warranted. It’s far better to file an additional patent than to end up in a situation where your product has no protection because it has evolved past your patent. Many companies end up with a portfolio of patents around a vital product—one for the core concept, others for improvements or versions. That’s normal.

One last point: If you significantly change course (e.g., your startup pivots to an entirely different product), your existing patent filings won’t cover the new business at all. You’d need to consider new filings for the new direction, and the old patents become more of an asset (perhaps to license or sell) rather than something protecting your current operations.

Patents protect what they describe. If your invention “changes its spots,” update your patent strategy accordingly. Patent law gives you tools to do so (continuations, new filings), but you must be proactive. Your competition will undoubtedly look for gaps in your patent coverage, so you should look for those gaps first and fill them if needed.

Your Next Steps To Patent Timing Success

Timing your patent applications correctly can mean the difference between owning exclusive rights to your technology and watching competitors freely copy your innovations. The proper filing strategy aligns your IP protection with your business milestones, fundraising timeline, and competitive landscape—maximizing protection while managing costs.

The bottom line: Strategic patent filing requires understanding both legal requirements and available prosecution approaches. In first-to-file systems, timing determines priority. Competitors developing similar technology create filing urgency regardless of who invented first. Poor patent timing decisions can lead to unprotected innovations, reduced competitive advantage, and limited control over technology monetization. Your hesitation gives competitors the upper hand while your innovations remain unprotected.

Here’s what to do right now:

1. Schedule a Free Patent Needs Assessment to evaluate your disclosure timeline, identify critical filing deadlines, and develop a strategic protection plan aligned with your business milestones
2. 2. Document all public disclosures you’ve made (conferences, social media, investor pitches, trade shows) with exact dates to determine your current filing deadlines
3. 3. Map upcoming business events (product launches, fundraising rounds, manufacturing partnerships) that should trigger patent filings
4. 4. Identify which international markets matter for your business to determine if PCT filing makes strategic sense
5. 5. Review any manufacturing or partnership discussions to assess if you’ve triggered “on sale” bars that start your 12-month clock
6. Evaluate whether your patent counsel has experience with advanced prosecution approaches that can help compress examination timelines and strengthen claim scope.

Properly timed patent filings don’t just protect your technology—they significantly increase your company’s attractiveness to investors and acquirers. Research shows that startups with patent protection are 6.4 times more likely to secure venture funding and more than twice as likely to achieve a successful exit through an IPO or acquisition. Strategic filing creates monetizable assets that drive business growth.

Remember: The quality of your patent protection depends not just on what you invent, but on when you file and how thoughtfully your applications are prepared. Your invention might be brilliant, but if you file after critical deadlines or with inadequate preparation, you may end up with limited protection. Invest in experienced legal counsel who can help you navigate patent timing strategically and develop applications positioned for strong protection.

Don’t let poor timing decisions cost you the exclusive rights you’ve worked so hard to create.

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About the Author

Craige Thompson is a registered patent attorney and founder of Thompson Patent Law, leading a team of registered patent attorneys with engineering degrees and extensive patent experience. The Thompson Patent Law team brings backgrounds from industry and major law firms, with collective experience serving clients ranging from individual inventors to Fortune 500 companies, including Apple, Google, Intel, and Microsoft. With over 1,500 issued patents and a track record of achieving allowance rates up to 94% when clients pursue sophisticated guidance, the team provides specialized prosecution services across electrical engineering, mechanical systems, software, and medical device technologies. Results vary based on individual circumstances, technical complexity, and strategic approaches deployed.