Everyone has had an “a-ha!” moment when the light bulb turns on. You then think that you will be making millions. However, before you get ahead of yourself, you have to find out if you can get a patent on your idea. By the end of this article, you should be able to determine if you can get a patent on your idea.
Can you patent an idea? Depending on what the idea is, you can get a patent. If the idea is a result, then no, you cannot patent a result. However, if the idea is a machine, process, manufacture, or composition of matter, then yes, you can patent the idea.
Let me explain.
Some patent attorneys say that you can’t get a patent on an idea. See here, here and here. However, when inventors ask if they can get a patent on their idea, they are not asking a legal question. Unfortunately, patent attorneys are not hearing the inventor’s underlying questions. Rather, patent attorneys understand the question in the legal sense. Inventors are simply asking if they can get a patent on their solution. They might have a mechanism or a process in mind for solving a problem. The solution to the problem is the patentable invention.
In my opinion, patent attorneys do not understand the question behind the question when an inventor asks whether they can patent an idea. To advise the inventor properly, patent attorneys need to understand what they mean by the “idea.”
The questions behind the question “Can you patent an idea?” are two-fold:
- What are the types of inventions that can be patented?
- Does the invention meet the standard for getting a patent?
These are the requirements to get a patent.
Types of inventions that can be patented
The Patent Office grants patents for three types of inventions.
- Useful inventions are protected by utility patents.
- Ornamental inventions are protected by design patents.
- Plant inventions are protected by plant patents.
The types of useful inventions that are patentable include:
- Manufacture and
- Compositions of matter.
These are the four categories of useful inventions that are eligible for patent protection.
Now, even if your invention falls within one of these four categories, the courts have made three exceptions. You cannot get a patent even if it is eligible for patent protection if your invention is:
- an abstract idea,
- a natural phenomenon,
- a law of nature.
If your invention falls within one of the four categories and does not fall into one of the three exceptions, then your idea can be patented.
The types of ornamental invention that are patentable include:
- any type of surface ornamentation.
The types of plant invention that are patentable include:
- any new and distinctive plants.
For a detailed explanation of whether your invention is eligible for patent protection, read: Can I get a patent on my invention?
Standard for getting a patent
If your invention is eligible for patent protection, then you have to compare your invention to existing technology. The Patent Office will not grant you a patent on an idea that is old (i.e., not new or novel) or one that is obvious based on existing technology.
Why would they? The purpose of the patent system is to encourage inventors to share their inventions with others. If it is already out there or if it would have already come out into the public domain, then the government has no motivation to grant you a patent.
Patents granted on new inventions
New or novel inventions are inventions that have never existed before no matter how small the change.
To find out if the invention is new, you can conduct a patent search. I suggest that you do one yourself first before you spend money on a patent attorney. You can follow the 7 Step Patent Search Strategy published by the USPTO. Read about it here.
If you don’t find something similar to your invention, then you can hire a patent attorney to do a formal one for you. More often than not, if done properly, the formal patent search conducted by the patent attorney will find better prior art than you.
Patents are granted on nonobvious inventions
If your invention is new, then the next question is whether it is nonobvious. If the difference between your invention and the prior art is minor, then you cannot get a patent. Examples of minor differences are changes in color, shape and size without adding any new functionality to the device. If the differences are greater than these types of minor differences, you cannot accurately predict whether you can get a patent on your invention. The decision to grant a patent is made by an examiner. Rules exist to guide the examiner on which invention should be patented. However, no one knows how a patent examiner would rule on whether the invention is nonobvious. In my experience, I’ve seen things that I believed to be obvious granted as a patent, and vice versa. In other words, just because you see something similar to your idea, I would not discount it.
Now, these are basic legal requirements to get a patent. You can test your knowledge. I’ve analyzed 32 different types of ideas. Read: Can you patent [Fill-in-the-Blank]? Yes, or No. See where your invention fits in to see if your invention can be patented.
How to get a patent?
Now that you’ve determined that you can get a patent, how do you get a patent? You need to apply for a patent with the USPTO. However, before you do so, you need to complete a few steps to make sure that you aren’t wasting your time and money applying for the patent.
Step 1: Build a prototype
Do you need a prototype to get a patent? No. You don’t need a prototype to get a patent. However, it is very helpful to build one.
First, the prototype is useful for proving that the concept works. I’ve helped many prospective clients a lot of money and time because I encouraged them to build a prototype first. They build it and find out that the prototype does not work. Also, the prototype might not work as well as they thought that it would.
Second, as you build your prototype, you will begin to find areas of improvement. All of these improvements can go into the patent application. So, what you thought was a simple invention is exceptionally intricate.
Third, you gain a new appreciation for the invention when you can handle the prototype. When you begin to work with patent attorneys, giving them a prototype helps them to understand how your works.
The prototype is not necessary, but it is helpful in these and other ways.
You may need a prototype in one situation. If you are patenting a machine that sounds like a perpetual motion machine, then you may need to build the prototype.
Step 2: Do a patent search
A patent search looks for documents that disclose the same idea as your idea. You can do a patent search by following the 7 Step Patent Search Strategy.
When I conducted my first patent search, it took about 20 hours. The patent search reviews a lot of data. You have to keep track of the documents. Plus, the patent search is an iterative process where you are continually looking up new categories and new terms. You will probably spend about the same amount of time so allot your time accordingly.
If the search finds something similar, then you saved yourself a lot of time and money. You saved money in two different areas.
First, you saved money on the patent process, which will be about $20,000. Read more about patent costs. Because the idea is no longer patentable, you don’t need to file the patent application.
Second, you saved money because you can stop pursuing the invention. You saved yourself a lot of time and money starting up your business.
Step 3: Write a business plan
A patent attorney is not a business mentor. However, everyone will agree that you should write up a business plan. A business plan will help you to understand the pros and cons of going through the patent process. For patenting purposes, it is a good idea to go through the steps of a business plan mentally. It will help you to see if you can make money on paper. If you can’t convince yourself on paper that you would make money, then you won’t be able to convince others to take a chance on you.
Step 4: Apply for a patent
If you’ve completed steps 1-3, then you are ready to apply for a patent with the United States Patent and Trademark Office. To find more steps you should do before you spend money on the patent process, read: 7 Steps before spending money on a patent.
To protect the functional features of your invention, file a utility patent application. The utility patent application can be filed as a provisional patent application or a nonprovisional patent application. To protect the ornamental features of your invention, file a design patent application. To analyze which application to file, read: Should you file a provisional patent application or design patent?
The most important part of the patent application is the patent specification. It must describe your invention in full detail. Otherwise, you may not get the patent protection that you need. You can read more about the patent specification in part 2 of my book: Navigating the Patent System.
If you want to find out more about patent costs, read: How to get a patent? (Cost-effectively)
After you submit your patent application, you are now patent pending. To learn everything about patent pending, read: Patent Pending: Definition, Benefits and Warning
Step 5: File a patent application first then market your invention
Patent laws allow you one year to market your invention then file a patent application later. The one year grace period gives inventors the ability to test market their invention to gauge market demand for their product. However, patent attorneys generally recommend that you file your patent application first before you do any sort of marketing for your invention.
Under the first-inventor-to-file rule, the one who wins the race to the Patent Office wins the patent. If you market your invention first before filing a patent application, then anyone who learns about your invention then files their own improvement to your invention gets priority. As between you and the other person, the other person gets the patent because they were the first to file.
Let’s say first and second inventors apply for a patent at about the same time. However, the first inventor submitted the patent application one day before the second inventor. Under the first-inventor-to-file rule, the first inventor gets the patent.
The first-inventor-to-file rule is stringent and harsh. The Patent Office simply looks at the respective filing dates. The one with the earlier filing date wins the patent.
If the first inventor had stolen the invention from the second inventor, then the second inventor may be able to sue the first inventor. However, litigation is expensive and unpredictable. Practically speaking, the second inventor will not be able to take the patent from the first inventor.
Does a patent protect you against patent infringement?
A patent does not protect you against patent infringement. Many inventors tell me that they want to get a patent because they don’t want any trouble with anyone else’s patent. If you are getting a patent for this reason, you will be disappointed. A patent does not give you this type of patent protection.
When you submit a patent application, your invention becomes patent pending. Patent pending gives you a priority date for your invention. For example, if another inventor filed a patent application on the same invention after you, then the Patent Office will grant you the patent because you have priority. You were the first inventor to file the patent application.
A patent gives you a right to exclude others from competing against you.
Can I get a design patent instead of a utility patent?
A design patent will not protect you like a utility patent. Conversely, a utility patent will not protect you like a design patent.
A design patent protects the look of a product. If you make the product look different but still keep the function of the product, there is no infringement of the design patent.
Alternately, a utility patent protects the function of the product. If you make the product function different, but it looks the same, there is no infringement of the design patent.
If you want to protect the looks of the product, then you must get a design patent. If you’re going to protect the function of the product, you need to get a utility patent.
To decide what type of patent application you need to file, then read: Should you file a provisional application or design patent?
How long does a patent last?
In simplistic terms, a patent lasts for 2o years after the filing date of the patent application. However, the patent term can change based on a few variables.
The 20-year term is calculated from the filing date of the earliest filed nonprovisional patent applications. The filing date of the provisional patent application is not counted against the 20-year term. If there are any patent term adjustments, you need to add to the patent term. In this regard, the patent term can be greater than 20 years from the earliest filed nonprovisional patent application.
For design patents, the patent term is 15 years from the grant date.