Kickstarter.com, Indiegogo.com and other crowdfunding sites have revolutionized the way that some businesses start up and raise capital. However, when new technology is involved, it is best to look before you leap. In a first-to-file patent system there is a danger that winning the race to raise capital could lead to losing the race to the Patent Office.
The starting point for judging whether the content of a patent application is “new” or not is the filing date of the relevant patent application. A hypothetical Baton Rouge Kickstarter user might ask a Baton Rouge patent lawyer “I launched my Kickstarter campaign two months ago, can I still get a patent?” Kickstarter activity prior to filing a patent application can make the answer complicated. One of the first steps in evaluating the situation of the Kickstarter user would be to ascertain if she already had a patent application and if so when it was filed. Figuring out the filing date, whether it has already occurred or is merely projected, is the basis for evaluating the various provisions of the novelty statute. The date an application is filed may not be judgment day in a biblical sense, but that day is used to judge whether the applicant will receive a patent.
The text of the novelty statute 35 U.S.C. 102 is available on this website and at the Patent Office website. A patent attorney in Baton Rouge or wherever you may be located may be able to assist you in evaluating whether your invention is new in the eyes of the Patent Office and whether the invention meets the remaining requirements for patentability.
Complicating a Kickstarter Launch
The following diagram illustrates how launching a Kickstarter campaign before filing a patent application can create a number of novelty issues.
A description of the invention in a printed publication, such as the Kickstarter website, prior to filing an application has the potential to destroy patentability. If the exception allowing for a one-year pre-filing grace period is available and the launch is not problematic for other reasons, the launch would not by itself destroy the inventor’s hopes of achieving patent protection. However, there are potentially significant complications. If the launch could be viewed as having an offer to sell the inventive product, a different portion of the novelty statute applies. While the same exception may apply to save patentability, there is no guarantee that a future court will find the offer for sale to be a protected disclosure. Perhaps most importantly, an inventor and Kickstarter user who launches a Kickstarter campaign prior to filing a patent application takes on an unavoidable risk that an intervening disclosure by a third party would destroy the opportunity for patent protection.
The simplest method for avoiding new patentability problems is moving quickly to file a patent application on a completely secret invention prior to any public use or sale activity of any sort.