Every good invention starts out with an idea, but the answer to the question – can you patent an idea – is a resounding NO! See Can Ideas be Protected? Therefore, in order to obtain a patent and become an inventor it will be necessary to move from idea to patent, which means that travel along the path to invention will take time. As with any lengthy project, keeping notes and tracking progress, success and failures becomes exceptionally important.
In the United States we are still a first to invent country and will remain first to invent up to March 15, 2013. On March 16, 2013, the law changes and the U.S. will become a first to file country, but not exactly like the rest of the world. Inventors will be given an extremely narrow grace period even under the first to file provisions. See USPTO Publishes Proposed First to File Examination Guidelines.
As a first to invent country the party who invents first gets the patent even if they are the second to file a patent application, but this is true if and only if the first to invent has the proof required by the law to demonstrate that they were in fact the first to invent. For many independent inventors and small businesses they simply will never be able to prove they were first to invent because the records they keep are not capable of making the required evidentiary demonstrations.
Even when we switch to first to file inventors will still in some cases need to be able to detail when they conceived of various aspects of their invention if they are going to attempt to rely upon the grace period. Affidavit practice to establish what was invented, when it was invented and that someone else derived their invention or disclosure from you will still be a part of patent practice even after March 16, 2013. Therefore, it is critical now to have an invention record and will similarly be extremely important even after the switch to first to file takes place.
Having (or not having) a good invention record becomes an issue because it is sometimes necessary to prove exactly when you invented, and sometimes it is even necessary to prove when you invented certain aspects of the overall invention. It is not extremely common to need to establish a particular date of invention, but if you fall within situations where it must be done then having proof of when you invented is critical. Not having good, quality, accurate and appropriate proof can be fatal to your attempt to obtain a patent. One excellent resource that helps inventors create a good invention record is The Inventor’s Notebook, which for the price of about $16.50 new is a real bargain.
As with so many things in life, however, there are a number of ways to do it correctly, and any number of ways to do it wrong. Compounding this is the urban myth, propagated by some scam companies over the years, which suggests that sending a description of your invention to yourself through the mail is beneficial to protect your invention. Unfortunately, protecting an invention is not so easy.
Regrettably, those that suggest that mailing a description of your invention to yourself will offer some protection are either simply incorrect or they are well over-blowing what mailing your invention to yourself can accomplish. It is absolutely imperative to understand that mailing a description of your invention provides absolutely no exclusive rights. To the contrary, mailing such a description to yourself and then doing nothing with it could be used against you later on to demonstrate lack of diligence, abandonment or even suppression and concealment, none of which would be good things!
The one thing that mailing a description of your invention can do is demonstrate that as of the date of the postmark you were in possession of whatever is included in the envelope, provided of course you will need to be able to establish that the envelope wasn’t opened, which is not a given at all. In any event, with the US patent system currently being a first to invent system, such a mailing could be at least some useful evidence, provided of course the envelope does have a postmark and provided the envelope is not opened. CAUTION! Do not overestimate the importance of mailing your invention to yourself. It is not bad to do, and in fact can be helpful in a limited number of cases. The main point is to remember, however, is that no exclusive rights attach to or will be derived from such a mailing. If you want a low cost solution to starting the patent process you should really consider a provisional application.
By sending a copy of your notes to yourself all you are doing is creating an invention record, assuming of course that the envelope is not opened and has a postage date stamped. It is, however, possible to open envelopes carefully, so mailing to yourself a description of your invention is not really the most helpful evidence you could have. There are, however, a number of things that you can do to create an appropriate invention record.
The best thing to do as you move through the invention process is to have someone who is familiar with the technology surrounding your invention to verify your invention notes. This happens in corporate America because there are other scientists around. What can do if there is no one handy who works in the field and who can attest to your invention? One thing that is within the ability of everyone is to have a notary notarize your invention notebook or invention record. While you could go to an attorney to do this, virtually every bank has at least one notary present at all times. There may be a small fee, but if you go to your personal bank they might just notarize it for you without charging anything.
The point with respect to getting your invention notes witnessed or notarized is that you want to have someone capable of verifying that they witnessed the documents at a certain date and time. It is best if they can also understand the invention so that there is no question that you added things after the fact. Of course, this is not always possible. When you cannot find someone who understands your invention, whether that person is a friend or a notary, have them initial or sign each page and notarize the entire collection. I would then place the notes into an envelope and have the witness or notary seal the envelope and sign across the seal so that it will be apparent if/when the envelope is opened. Then be sure to keep these invention notes in a safe and secure location.
Keeping an invention notebook or other invention record is an extremely wise thing to do, and in fact should be done by every inventor. How else are you going to know what you did and whether it worked or not? So aside from any legal requirement or advantage received by having an invention record it is just good inventing practice. So you will want to keep a working copy for your reference.
With this in mind it is important to appreciate that an invention notebook is not merely for proving when you invented aspects of your invention, which will rarely if ever be necessary for the overwhelming majority of inventors. An invention notebook or invention record comprised of a collection of notes will be critical for you as you progress down the path of inventing. While we might all like to flatter ourselves with how capable our memories are, you are likely to try so many different things that either fail or succeed to varying levels that days, weeks or months later you will not be able to remember each and every aspect. This can and will lead you to recreate the wheel, so to speak. So keeping a good invention notebook is far more useful for the inventor for personal reference than it is for evidentiary reasons.
Even doing all of the appropriate activities to create and verify your date of invention, all will be useless unless there is enough detail in your notes so that someone (including your) can readily understand what you invented and how to make and use the invention. Nevertheless, what normally happens is inventors will keep detailed notes and then periodically have the entire notebook verified. This is good, but it is important to remember that verifying your invention notebook or record is not a singular act. You should do this periodically throughout the invention process. That is what corporations do, that is what professional inventors do, and that is what you should do as a first time or garage inventor.
Finally, I want to again stress that even keeping an appropriate invention record will do nothing to lead to the creation of exclusive rights. Unlike copyrights, which exist immediately upon creation, a patent exists only upon issuance of a patent, which can only occur after a patent application has been filed. Thus, keeping an invention record does not protect your invention at all — no matter how detailed the invention record is. A well written and thoroughly documented invention record (or invention notebook) gives you proof of what you did when you did it, which may be helpful if and when such proof may become necessary in a patent application proceeding. An invention record also gives you a continuing diary of your trials and tribulations so you can honestly and accurately keep track of what has worked and what has failed. But for exclusive rights to attach you must apply for and ultimately obtain a patent on your invention.
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Editorial Note: This article was first published on the IPWatchdog Blog on October 15, 2010. What appears above has been updated as of July 26, 2012.