When should I file a patent application?
There are clear advantages to filing a patent application as soon as one is capable of doing so. First to file and first to invent are legal concepts that define who has the right to the grant of a patent for an invention. The first-to-file system is used in all countries except for the United States, which will switch to a first-to-file system on March 16, 2013 after the enactment of the America Invents Act.
In a first-to-file system, also called "first inventor to file" system, the right to the grant of a patent for a given invention lies with the first person (the first inventor(s)) to file a patent application for protection of that invention, regardless of the date of actual invention.
Most countries have a statutory bar that prevents applicants from getting a patent if the invention is disclosed publicly before the filing of the application. The U.S. and Canada are the only two countries that we are aware of that give applicants a twelve month grace period to file their application.
The practical reality, however, is that not every applicant can file their patent application immediately. That being said, there are ways for an applicant to limit the risks associated with waiting. The first and least expensive way is not to disclose an invention to anyone unless the receiving party is bound by a confidentiality agreement. The confidentiality agreement, however, will not prevent loss of rights if the receiving party discloses the invention to someone that is not bound by the agreement. The next least expensive way to limit the risk of waiting is to take advantage of provisional patent applications. Provisional applications have a relatively inexpensive filing fee, they are not examined, and there are few formalities, which makes them the most appropriate application to file in this instance. Of course, applicants should always maintain a notebook record of their invention in the event that it is necessary to prove an earlier date of invention.