INTRODUCTION

Nearly fifteen years ago, we highlighted a core principle of intellectual property protection: delay is the enemy of rights. That message remains true today. In Intellectual Property matters, delay is often the costliest mistake a business can make. Filing early, documenting early, responding early, and contracting early all dramatically increase the chances of securing strong rights and avoiding unnecessary disputes and expenses.

The following provides a practical update on how early action strengthens patents, trademarks, copyrights, contractual ownership, and infringement defenses.

1. PATENTS: The First-to-File Advantage

Since the America Invents Act (AIA) was enacted in 2011, the U.S. patent system is a first-to-file, not first-to-invent, system.

This means:

The first to file a patent application first generally wins the patent race — even if someone else invented the same invention earlier.
Relying on internal notes, emails, or “I created it earlier” is no longer effective.

Global Reality: Absolute Novelty

Most countries still require “absolute novelty” which means, any public disclosure before filing — a pitch, a trade show, a website, Amazon listing, or even a social-media video — can permanently destroy the right to obtain foreign patent protection.

Priority Claims & International Strategy

Filing a U.S. patent application extends the period for for filing a corresponding foreign patent application:

12-month foreign utility filings
6-month foreign design filings

The early filing of a patent application preserves global options. Delays can close markets forever.

Rights from Early Publication

Published U.S. applications may generate provisional royalty rights against infringers who receive actual notice and where claims are substantially identical. Earlier filing = earlier publication = earlier monetization rights.

Strategic Tips

For fast-moving product categories, where available, use expedited examinations to secure patents more quickly.
File provisional applications early and frequently to lock in dates.
File design applications (U.S. and Hague) alongside utility for consumer products, jewelry, packaging, and GUI interfaces.
Apply patent marking notices to patented products.

2. TRADEMARKS: Early Filing Avoids Costly Conflicts

Intent-to-Use Applications Remain a Powerful Tool

The U.S. still recognizes first use, but an early Intent-to-Use (ITU) application:

Blocks later filers — even if they start using a trademark before you do
Preserves priority for up to three years
Avoids disputes about whether limited pre-launch activity counts as “use in commerce”
Provides a right of priority, a six-month period, for filing corresponding foreign trademark applications with the U.S. filing date as the effective date of the foreign application
Avoids expensive delays, suspensions, and oppositions.

Foreign Filings: First-to-File = First-to-Own

Most countries follow strict first-to-file systems.
Early foreign filings prevents unauthorized registration of trademarks by:

Third-party squatters
Manufacturers
Early foreign filings also avoid delays in entering new markets.

Modern Risks: Online Sellers & Amazon Brand Registry

If a competitor files first:

You may be blocked from Amazon Brand Registry
You may face takedowns or listing removal
Opposition proceedings may be required

Strategic Tips

Conduct trademark clearance searches early, then promptly file U.S. and foreign applications before investing in packaging, advertising, and tooling.
Use ITU applications to secure priority even before the trademark is used.
File key foreign applications early — China, EU, UK, Mexico, Japan.
Register domain names and social handles immediately after clearance.

3. COPYRIGHTS: Registration Unlocks Powerful Remedies

Filing a U.S. infringement action
Statutory damages ($750 to $30,000 per work; up to $150,000 for willfulness)
Attorney’s fees

These remedies are only available if registration is made:

Before infringement, or
Within three months of first publication

Delay = loss of powerful financial leverage.

Register early for websites, product photographs, software, artwork, labels, packaging, instruction manuals, and other creative assets.

Strategic Tips

Websites
Marketing content
Product photographs
Packaging layouts
Software code
Ornamental jewelry, furniture, and applied surface designs
Instruction manuals and user documentation

Registration costs are low. Litigation leverage is high.

4. EMPLOYEES, CONSULTANTS & MANUFACTURERS: Agreements Must Be Timely

Before-the-Fact Agreements Are Critical

Rights can be lost or become questionable when:

Employees assign IP only after creation
Consultants don’t sign written “work-made-for-hire” or assignment agreements
A manufacturer, distributor, freelancer, or design house contributes creatively without an agreement
Confidential information is shared before an NDA is executed

Certain after-the-fact agreements, in some cases, can be invalidated for lack of consideration or coercion.

Strategic Tips

Use written agreements at/from the outset of business relationships including:

Employee invention assignment & confidentiality
Independent contractor IP assignment
Consultant engagements
Manufacturer (including foreign suppliers) non-use, non-disclosure and non-circumvention agreements
Manufacturing agreements
Outsider idea submissions (with proper disclaimers)
Joint-development or co-branding projects

Early, written agreements protect ownership and avoid costly disputes later.

5. INFRINGEMENT CLAIMS: Early Response Reduces Risk

Willful patent infringement can still lead to enhanced damages up to 3x, and may include attorney’s fees. Courts routinely examine:

How quickly a company responded to a demand letter
Whether an opinion of counsel was obtained
Whether potentially infringing activity continued after notice
Whether a business took prompt action against an infringer

Strategic Tips

If a claim is received:

Promptly contact IP counsel
Conduct a prompt infringement and validity assessment
Obtain a written legal opinion before continuing sales
Evaluate design-arounds early
Implement document holds and defensive measures
Do not ignore or slow-walk responses to claims as “willful blindness” and “reckless disregard” can expose a business to increased penalties and sanctions.

When a business learns of violations of its own patents, trademarks or copyrights, the failure to take prompt action may result in a denial of an injunction and diminish the amount of damages it can obtain.

Conclusion: The Cost of Delay Has Never Been Higher

In every IP category: patents, trademarks, copyrights, contracts, confidentiality, and enforcement, businesses that act timely and first consistently secure the strongest rights at the lowest cost.