Dear Rich: I am new to this patent stuff. There is a patent on a campfire hot dog fork from the 1980s. I have an enhancement to this type of fork. Do I get someone to market and sell my product or do I need a patent before I do so? Or should I go with a Provisional Patent? The short answer is that pitching your idea without some form of legal protection -- a signed nondisclosure agreement or some form of patent protection -- may result in the loss of your idea. As for the fork, if the original patent was issued in the 1980s, it is now in the public domain and free for everyone to use. If you patent an enhancement then you will have the exclusive right to that enhancement but not the underlying invention. Before spending any money you should review the "hot dog fork" patent literature as there are many post-1980s hot dog fork patents and inventions (our favorite is the Rolla Roaster). We recommend patent searching at Google. As for whether to market your fork before you patent it, whole books have been written on this subject, including one by the Dear Rich staff. The main thing to keep in mind is that if you disclose your unpatented idea without restrictions, others are free to copy it without breaking the law (sample nondisclosure agreements are here).
No Such Thing as a Provisional Patent
Not to be too nit-picky but there is no such thing as a provisional patent; there is only a
provisional patent application (PPA). When you file a PPA, it holds your place in line at the USPTO and allows you to claim patent pending status for a year. If you don't file a regular patent application within a year, the PPA has no value. Nolo offers PPA
articles,
books, and an
online PPA filing program.
