Is My Idea Patentable?

Many of us have experienced that exhilarating feeling when an idea for a new invention comes to us in a momentary flash of brilliance. That initial excitement usually fades, though, as we eventually realize it won’t really work, or no one would actually want it, or it’s already been done.

But once in a while, the idea persists; we can’t shake it. And we start asking, “Should I patent it?”

Before asking that question, however, there’s a more important question to answer: “Is my idea patentable?”

You Can’t Patent Ideas

Though we often talk about patenting an idea, the Patent Office won’t do it. The idea has to take some sort of form to be patentable.

The whole premise of a patent is that you receive a temporary government-sanctioned monopoly on your invention in return for revealing its details to the world. The details you provide must be sufficient for anyone who has normal skills in the field of the invention to create or practice the invention based solely on your description of it.

If you can’t describe it in enough detail for someone to build a working model, it’s not patentable. That usually means to get a patent you have to build a working model yourself, first. When you get there, you’ve moved beyond the pure “idea” stage as explained in article.

Must be New

Assume an inventor creates a new kind of hair clip, and starts manufacturing and selling it. Next assume he’s been happily making money off his invention for two years without ever acquiring a patent. When the inventor decides he may need to patent the clip because his competitors are realizing his oversight, it’s too late. The patent has to be applied for within the first year after the invention is disclosed to the world. After that, it’s no longer patentable.

In some foreign countries, the patent application has to be filed before an invention’s first public disclosure or it’s not patentable.

Even if no one has patented your invention or anything like it, if the same or substantially similar device has been described in any publication anywhere in the world before you came up with your vision of it, it’s not a new invention and therefore it’s not patentable.

Must be Non-Obvious

This is one of the most controversial issues in patent law and the frequent subject of many a court battle.

The definition of obvious often revolves around an argument such as this: If anyone skilled in the art of the invention would have naturally thought to combine the elements of the invention in the same way when presented with the same problem to be solved, then the invention is considered “obvious” and no patent can be granted. Just because the applicant was the first person to consider the problem and come to the obvious conclusion doesn’t make him or her an inventor.

When you look at an invention and think, “Wow. What a brilliant idea!” then it probably qualifies as non-obvious assuming you’re familiar with the field. When you look at an invention and think, “Well, duh!” then it probably qualifies as obvious. It’s that gray area in between where some think it’s brilliant and some think it’s a no-brainer that keeps the lawyers and the courts busy as you can read from

Must be Useful

Patent applications can be extremely creative works when it comes to describing the usefulness of an invention. For example, patent number 6,561,905 describes a game device that outputs an electrical shock to the loser as being useful to “play games as well as to stimulate the circulation of blood.”

As a practical matter, the patent examiner will accept almost any remote claim of usefulness as long as the invention actually works. Usually, it’s only if an invention doesn’t actually work that the application is rejected for “not being useful.”

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