Poor Man's Patent & Why It Won't Protect Your Idea or Invention

Why The "Poor Man's Patent" Is No Good

A poor man's patent is sort of like an old wives tale. The idea is that if you draft a document outlining your invention or idea, mail it to yourself which confirms the date it was created, and then don't open it, it in a way proves that you had this idea or invention at a particular date in time. Great in theory, not so great in reality.

I'm touching on this topic as a buddy of mine is an inventor, or I guess I should say wanna be inventor, we all in a sense or wannabe's until we find success. He doesn't have the funds to patent and attempt to protect all his ideas, it can be quite expensive running into the thousands if not even sometimes the tens of thousands of Dollars. Sometimes you spend this money just to find out that someone already has a patent on your idea.

Because of this my buddy has always talked about the "poor man's patent". He recently approached me again and asked me about the poor man's patent so I decided to look into this in more detail.

We should start by saying that ideas are not patentable, only inventions are. You can have an idea for a dog collar with a built in leash, but you can't patent an idea or a concept, you can only patent the actual utility design and you can trademark the brand name and product you create.

Several years ago I had actually written another post on this exact topic titled "Does The Poor Man's Patent Really Work To Protect Your Idea or Invention?" But I decided to revisit this topic as a buddy of mine is back sending himself letters in the mail, so I wanted to put this old wives tale to bed once and for all.

I think we can put our finger on the source of this truly non-existent type of protection. The theory or concept behind the poor mans patent is that you draft a document, seal it, mail it, and keep the envelope sealed as we mentioned above. As long as you don't "break the seal" until, I suppose, in front of a judge or the patent board, you can prove you came up with the concept before someone else. That at one point may have had some validity, however that was when the government was on a "first to invent" system, before they moved to a "first to file" system. The burden of proof so to speak was no longer who invented it first, but who actually filed for the patent first. This happenned back in 2013. Though the poor man's patent was probably never a very strong way of proving the date of design, it actually did have some legal backing prior to 2013, but once the government moved to a first to file the poor man's patent was made irrelevant.

With a "first to invent" system, ownership of an invention was awarded to the first person who could prove they invented an item first. The best way to go about that was to file a patent application, so the poor man's patent probably would have worked to some extent prior to 2013 right? WRONG.

Without a patent application the poor man's patent, even prior to 2013, proved the owner owned nothing but a sealed piece of paper. It could be argued the poor man's patent could have been used as a "swear behind" if an actual patent was filed. Swearing behind is a term which was based under the old system when a patent employee could reject your patent applicationi based on a prior reference that predates your filing date, but postdates the date of your "poor man's patent."

Using the poor mans patent you could potentially show that you were in possession or had come up with this idea prior to the reference date cited by the patent examiner.

Since the system changed in 2013 however, there is no basis for thinking a poor man's patent can prove anything. Today, it's essentially a race to the patent office, figurately speaking of course as patents are submitted online these days. The inventor that first files for the patent gets the patent. It's pretty straight forward in that sense. There is no more "swearing behind".

Because of this, just showing that you invented an item prior to another person filing their patent does nothing for your case. Even under the old system, prior to 2013,  a poor man's patent alone, ie without a patent application was completely worthless.

You can't ask a judge or jury to enforce a right that the US Government does not even recognize as a right.

For those of you inventors out there on a fixed budget, there is a way to get the whole thing in motion. One thing you really want to consider however is that the patent process can be expensive so you probably want to consider conducting a patent search on your own prior to shelling out any money. Your own patent search won't be as extensive as it can be. One gentlement I know personally had an idea for rollerblades/ice skates which can be changed from one to the other. He spent about $12,000 on patent research just to find out that his idea was already taken.

A buddy of mine is a would be inventor. I told him, unless you have a rock solid idea your confident you will have success with and believe in, don't waste the money. If nothing else just roll out your product to market, build a name as quickly as possible so if others do decide to intrude on your idea you have a lead in the marketplace and again, if you don't have the funds to do what needs to be done maybe try to license the idea to a larger company who does.

Yes there is a chance your idea could be stolen, but personally speaking I would rather roll the dice at a chance for success versus letting an idea sit on a shelf and never do anything with no chance of making any money off of it.

Regardless, don't even bother with the poor man's patent as it gives you no legal standing and your just wasting your time, and giving yourself a false sense of security.