Can you Patent an Idea?
Differences Between Idea and Invention
Every invention indeed does start as an idea but not every idea is an invention. Inventions and ideas are very different entities and being able to differentiate them is the key to knowing what a patent is and how to receive a patent. Ideas such as imagining flying cars or magnetic trains are great in theory but knowing how they actually work is the key to patents. So if you have an idea you should not give up on the idea but you should work on steps to flesh out your idea into something more concrete that would be suitable for patent protection.
Describe Your Idea
So how do you get from having an idea and creating an invention to then receiving a patent? To start you don’t always need to an actual working prototype in the United States to receive a patent for your idea. This means you don’t have to have your finalized model! What you do need is to be able to describe your invention enough so others could both create it on their own and they know how to use your invention. In some cases, you may need a working prototype for inventions are advanced or extraordinary. The best way to describe your invention enough is a fully fleshed out description with multiple illustrations that clearly show your invention and what you are trying to accomplish.
Not requiring a prototype can be beneficial to you for many reasons as an inventor. One reason may be that in the process of working with a manufacturer or designer to create a prototype, they might try to steal your idea before you patent. On the other hand, having a working prototype such will give you something to show off to potential clients or investors. Finally, you may find out there are problems with your invention during the prototype development process. The prototype process may help you refine some things in your idea before filing a patent for this idea.
Prototype Your Creation
Either way, if you decide to have a working prototype before or after filing the patent it is important to keep a record of how you came up with the idea and detailing the progress of your idea along the way. These details will help prove you are indeed the inventor who came up with this idea. Accurate notes can also be of help with your creative process. It is also important to be careful of whom you are talking to about your invention even if its friends and family. When showing the prototype of your invention make sure to obtain a non-disclosure agreement from anyone who has been provided access to your idea. The non-disclosure agreement should acknowledge that you have all rights to the idea and the idea will remain owned solely by you. You will want this disclosure to prevent the other party from discussing your idea without your permission.
Ideas to Patent: When Your Idea is an Invention
When considering what type of invention you have, there are two categories the invention may fall in. If your invention has a unique appearance such as for example a croc shoe, an interesting looking user interface, or shape of the phone, then you should be looking to file a design patent. If your invention involves the machine, a new chemical composition or formula, a process, or a manufactured combination of material, you should be looking to file a utility patent. Tons of times people have great ideas but are not able to put the idea into an appropriate category because the idea is only a concept and not an invention. To avoid getting caught in this trap you have to reduce your invention to practice which you can do by fully describing the invention in a patent application enough for one who ordinarily would be working in the field the invention can understand. If your invention does not fall into one of these categories then the invention still might be an idea and needs to be further refined or elaborated on to fit into one of these categories.
There are some categories of ideas that can never be inventions and thus can never be patented. For example, an invention cannot be a mathematical formula. The patent office considers these a natural phenomenon and belongs to the world. But there is a way around this, you need to apply these mathematical formulas to a machine in the real world, or using these formulas make something else useful happen. An invention cannot be a natural discovery. For instance, if you found a new type of cat while you were backpacking in the woods you could not patent it even though you discovered the cat. You might be able to name it but just discovering something is not enough, you would have to modify it or incorporate the natural discovery into a bigger invention that falls into one of the categories. A new mineral discovered in the ground or a new plant found in the wild is also a not thing that can’t be patented. Also if you came up with a new religion or philosophy this would be an idea that is not patentable.
Another thing people get commonly confused is if the idea is a story or a brand name. These types of idea would fall into copyright or trademark law respectively. If you came up with a new story, song, sculpture, building and established it on a physical medium such as paper, the internet, or an actual building then you should be looking for copyright protection which protects from piracy, as opposed to patent protection. If you came up with a new slogan or brand name for your company like Nike, the Nike swoosh, or “Just Do it” then you should be looking for trademark protection which protects your brand from confusingly similar marks.
Patent an Idea as an Invention
To receive a patent for your idea you must have an invention that is new and non-obvious and most importantly, created by you. Now when we say come up with by you, we mean that how the process of how the idea actually works needs to be created by you. For example, flying cars have been depicted in may shows or movies such as Jetsons but they haven’t actually described how they work. If you come up with how they work then it can be said to have come up by you. Now if you saw your friend make a new shaped bottle for lotions and wanted to try to patent it because he is not interested then you would not be the inventor and you would not be able to receive a patent for his idea. If you contributed to the invention in a way then you may be a co-inventor and have the rights to the invention. To also patent your invention it must be new in that no one has ever made the same invention before.
When looking to see if there are any inventions that are the same as your invention the patent office looks through any patents, publications, products sold, or anything well known anywhere in the world. If somebody has a patent for your invention in Japan you cannot patent in the United States. If a Russian newspaper from the 1980s has an article detailing your invention you cannot patent your invention in the United States. If somebody is selling your invention in China then you cannot patent your invention in the United States. If a group of monks in Tibet have been using your invention in public since the 1500s you cannot patent your invention in the United States. A pretty tall task to have something unique but don’t worry it happens to have every day.
Inventions are Non-Obvious
The next part the examiners look at is if the invention is non-obvious. This is tricky because really anything can be obvious. What this means is if you are combining two previous inventions into somebody you cannot get a patent for it unless something new or unpredictable is created from it. If you added a speaker to a beer cooler you can probably not get a patent on it. However, if you combine Advil with some foot powder and create the cure for baldness you can probably receive a patent on this because you created something from new from a combination of two old inventions.
Even your own previous inventions can be used against you when looking to see if your new invention is novel and non-obvious. Let's say you made the invention 20 years ago but want to file for a patent on it now, you won't be able to. This is because if you have published, sold, or showed off your invention in public for a period of more than a year then the invention or idea enters the public domain and anybody will be able to use it. This is based on the philosophy that people have come to expect that your invention is available to them because they have grown accustomed to it so it's not right to expect them to pay for the right to use the idea or invention years later. So if you plan on kick-starting your idea or invention you better be careful because if a year passes you are no longer able to patent it. Another to watch out for is if you patented the first invention 10 years ago and wants to slightly change some aspects of the invention and receive a new patent. When reviewing the new patent application the examiner can use the first invention against you and say this new invention is not innovative enough on its own to receive a patent. A way around this would be to file a continuation in part on the original invention but it is important to note that protection for the second invention will only last for the same period of time as the first invention.
To determine novelty and non-obviousness a patent search is highly recommended which searches for prior inventions on patent databases such as the European Union, China, Japan, and Russian and searches for your invention on popular sites like Amazon and Alibaba. If something is found that describes all the steps of your invention then your invention is not new, if you find two or more references describing your invention or teaching your invention then your invention is likely, not non-obvious.
Another thing the patent office looks, especially with software is to see if your invention has utility in that it’s not merely applying an idea to the basic computer. We already discussed that you cannot have an idea patented so people were trying to avoid this by applying the idea to computers to have their idea fall into one of the acceptable categories for a patent. The courts eventually ruled to stop this practice and now look to see that you are not just applying an idea to computers. For example, if you made a program to store brokers names the patent office would consider this merely an idea implemented on a computer because this could be done in the real world on pen and paper. However, if you improved some aspect of the computer or designed software that improved digital motion capturing system then your idea would have utility.
If you have to remember anything from this article remember to patent your idea, your idea needs to have some type of function or aesthetic design, the idea must be new and non obvious when compared to international patent, publications, and products sold, and you must have a complete explanation of the invention so that somebody of ordinary skill in the field of the invention would be able to understand the invention enough to make and use it.
Leave a Comment / Patent Application, Patents / By Chris Mayle and J.D. Houvener of Bold Patents