File too late (no. 10 in our list of IP mistakes)
Sometimes the biggest mistake is the one you didn’t realise you made.
IP laws that grant exclusivity do not leave value on the table for the next place finishers. Let’s look at patents first. With patents, filing too late is a serious mistake, especially in first to file countries, and could seem to leave little to expand upon in a blog posting. If you file for a patent after someone else, you lose invention priority to that other patent filer and all its attendent benefits. To avoid this mistake, you want to prudently file early, with the qualifier “prudently” reflecting that you take any step to delay filing an application for IP on purpose, with deliberation.
With trademarks, filing too late can likewise lead to a loss of a mark, especially if you have not yet used the trademark for business. Like patents, it is straight forward. If you have an idea and have not registered it as yours directly at through a trademark application or indirectly through use, then someone else may beat you to that mark. Given that you may not wish to advertise a new trademark idea by using it in the market until all your marketing ducks are in a row, so to speak, then filing for the trademark early helps to protect you while staying discrete.
What makes filing too late interesting for further exploration is that it is often a symptom of another mistake among the many we will write about in this series. Why exactly did you file too late? Was it (1) that your IP strategy and your business strategy fell out of alignment, confusing the importance of the IP? Was your invention or trademark capture and review process (2) inefficient, causing it to take too long for IP to reach the attorneys? Are creative emloyees (3) not trained in IP sufficiently or in close enough contact with IP attorneys for IP to even be recognized as something on which to file? Did your competitor simply outpace you to the finish line (4), and why did that happen?
With most mistakes that we all recognize as mistakes, when we make them anyway, there is usually some other less recognized mistake that caused us to fail. It’s no different in principle that we know not to be late to important meetings, and sometimes it happens anyway and more than once. If there is a consistent problem that causes you to file for IP too late when you know the consequences of filing too late well enough, that is a problem to worth fixing.
(This is number 10 in our list of IP mistakes and how to avoid them.)
[Image credit: Stuck in Customs]