And How to Avoid Them With the Right Legal Strategy
At Fargo Patent & Business Law, we work with forward-thinking entrepreneurs and growing companies across the United States who are serious about protecting what makes their business unique. Patents are a powerful tool—but when handled incorrectly, they can quickly become a liability.
From missed deadlines to poor drafting to relying on the wrong type of legal support, patent mistakes can cost businesses tens of thousands of dollars—and in some cases, their competitive edge altogether.
This guide outlines the most common patent pitfalls—and more importantly, how to avoid them.
Mistake #1: Talking About Your Invention Too Soon
One of the most common missteps is disclosing your invention publicly before filing a patent application. Public disclosures can include trade shows, product demos, investor presentations, or even a post on your business’s website or social media.
Under U.S. law, you have a 12-month grace period from the date of first public disclosure to file for a patent. However, many foreign jurisdictions operate under a strict “absolute novelty” standard and do not offer any grace period at all—once the invention has been publicly disclosed, your international rights may be permanently lost.
Beyond the risk of losing patent rights, early disclosures can also tip off competitors.
How We Help:
We advise clients on what counts as a public disclosure, help establish non-disclosure agreements, and file provisional patent applications to reduce risk of undesired disclosure without delaying business activity.
Mistake #2: Filing Too Early—or Too Late
Filing too early can backfire if your invention isn’t fully developed. A patent application must disclose enough detail for someone skilled in the field to reproduce it. If that level of detail is missing, the patent may be rejected or rendered unenforceable.
Conversely, waiting too long can also be detrimental. If a competitor files first, they may receive the patent instead. The United States follows a first-to-file system, not first-to-invent.
Proper timing requires balancing readiness with urgency. Businesses that overlook this timing window risk costly re-filings, narrowed protection, or total loss of rights.
How We Help:
We help clients determine when to file, what kind of application to start with, and how to structure claims to reflect both current and provide foundation for future versions of the invention.
Mistake #3: Choosing the Wrong Type of Patent
There are three main types of patents in the U.S.:
- Utility patents: Protect how an invention works or functions.
- Design patents: Protect how an invention looks.
- Plant patents: Protect new, asexually reproduced plant varieties.
Choosing the wrong type of patent to pursue—or relying solely on one when a combination is more appropriate—can result in weak or incomplete protection. For example, design patents cannot protect functionality, and utility patents don’t cover aesthetics.
How We Help:
We analyze your invention’s form and function, then recommend the right mix of patent applications for maximum coverage and long-term protection.
Mistake #4: Poorly Written Applications and Claims
Patent applications are not just technical descriptions—they are legal documents that must hold up under scrutiny from patent examiners, competitors, and possibly even in court.
Poor drafting—particularly in the claims section—can make a patent too narrow (easy to work around) or too broad (more likely to be rejected). Missing information, vague language, or technical errors can lead to costly delays or outright rejection.
Even approved patents can be rendered useless if the claims don’t clearly define what’s protected.
How We Help:
Our attorneys craft strong, enforceable claims tailored to your business goals. We take the time to understand your innovation and align the technical language with a legal strategy that supports licensing, enforcement, and commercialization.
Mistake #5: Skipping the Prior Art Search
A prior art search identifies existing patents and publications that are similar to your invention. Skipping this step can result in applying for a patent that’s already been filed or easily rejected for lacking novelty or being “obvious.”
The USPTO will perform its own search during examination, and if your invention isn’t sufficiently new, the application will be denied. Although the patent examiner may find different prior art, early identification may help avoid an obvious rejection.
How We Help:
We conduct thorough prior art searches before filing, helping you make informed decisions and improve the strength of your claims from day one.
Mistake #6: Assuming a U.S. Patent Protects You Globally
A U.S. patent only gives you rights within the United States. If you intend to sell, license, or manufacture your product abroad—or even ship it to international customers—you must consider foreign filings.
International protection requires careful planning and timing. The Patent Cooperation Treaty (PCT) allows you to preserve international filing rights across multiple countries, but there are deadlines and procedural rules to follow.
How We Help:
We help businesses create a global patent strategy that supports international sales and can prevent unauthorized manufacturing overseas.
Mistake #7: Using DIY or Online Patent Filing Services
Online patent platforms may seem appealing due to lower upfront costs, but they often result in poorly drafted, boilerplate applications that don’t provide meaningful protection.
These services often:
- Don’t help with claim strategy
- Don’t include prior art analysis
- Don’t offer enforcement or litigation support
- Don’t align with business objectives
The result? You spend money on a filing that may be invalid, unenforceable, or completely miss the mark.
How We Help:
We don’t file and forget. Our approach is comprehensive—from filing to follow-up. As your fractional in-house legal team, we tailor your patent strategy to your growth plans and enforceability needs.
Mistake #8: Not Having Legal Counsel Involved Early
Legal mistakes compound over time. Contracts, disclosures, filings, and deadlines all require coordination—especially as your business grows or seeks funding.
Without legal oversight, businesses risk:
- Filing incorrectly
- Missing deadlines
- Licensing technology without proper terms
- Signing away rights inadvertently
Working with legal counsel from the start ensures your IP strategy supports your larger business objectives, not just today—but as you scale.
Why Fractional In-House Counsel Matters:
We provide year-round legal support as fractional in-house counsel for innovative businesses—ensuring alignment between legal strategy, product development, and market goals.
Patent Enforcement and Litigation Risks
Securing a patent is only the beginning. If someone infringes on your rights, enforcement becomes critical. But without a properly drafted application and maintained patent, enforcement may be difficult or impossible.
Litigation is expensive and time-consuming. If your concept is not adequately described or distinguished from other patents or your patent is not carefully maintained, you may not be able to defend it. Worse, you could face a countersuit.
Having a solid legal partner helps you:
- Send cease-and-desist letters with confidence
- Respond to infringement disputes
- Engage in licensing discussions from a position of strength
- Avoid missteps in enforcement that could invalidate your own rights
At Fargo Patent & Business Law, we prepare your patent for real-world use—not just approval on paper.
Provisional vs. Non-Provisional Patent Applications
Understanding the difference between these two types of filings is essential:
- Provisional patent applications: Establish a priority date but are not reviewed and do not offer enforceable rights. They expire after 12 months and are not required.
- Non-provisional patents: Are examined by the USPTO and can lead to a granted, enforceable patent. A non-provisional application must be filed within 12 months of a provisional filing to claim benefit of the priority date
Provisional filings are useful when you’re still finalizing your invention but need to secure your place in line. However, many businesses forget to file a non-provisional application to claim benefit or errantly presume the provisional provides enforceable protection.
Our Guidance:
We help you use provisional filings strategically, and we make sure your follow-up filings are timely, complete, and aligned with long-term protection.
Why Businesses Choose Fargo Patent & Business Law
We specialize in:
- Patents: Strategic filing, prosecution, and enforcement
- Trademarks: Federal registration and brand protection
- Fractional In-House Legal Counsel: Ongoing, proactive legal support
We don’t just respond to problems—we help prevent them. Whether you’re preparing for launch or planning international expansion, we work alongside your team to build a legal foundation for long-term success.
Businesses across Fargo, Colorado Springs, and throughout the US trust us to protect their most valuable asset: innovation.
Ready to get started?
Let’s protect your invention before someone else does.
Visit fargopatentlaw.com/contact to schedule a consultation.