Inventors can file a Patent Application without Prototype

As a patent attorney in Buffalo, New York I often get asked questions about such as:

Do I need to make a prototype?

Can I file a patent application without a prototype?

Suppose you have a great idea for an invention. But you don’t have the money or the resources to make a prototype. Perhaps you’re still working out the kinks. Sometimes it may be advisable to file an application before the research is done or before certain experiment results become available.

Can you file a patent application if you haven’t even started to build or test it yet?  Absolutely!

A prophetic patent is one that predicts the future instead of reporting the past. In order to file a patent application you need to describe how to make and use the invention. You do not need a working example.

So even though you haven’t made it, if you can describe how to make it- you can file a patent application. You don’t need to submit an example of one that works to the United States Patent and Trademark Office. This is called enablement by the patent office (35 USC 112).

Another question often asked by inventors is:

Should I file a patent application right away?

Absolutely! There are very powerful incentives to file a patent application as soon as possible. As the law stands now the first person to invent has superior rights, although the first person who files an application has major advantages over a person who files later.

The law is going to change very soon. The new law will  give superior rights to the first inventor to file the application. Here is a link to the federal register which outlines the proposed new rules about first to file.