Can I Patent an Idea Without a Prototype: Everything to Know
Patents protect innovations and copyright protects expression, but both do not protect concepts. The concept is the primary step.3 min read
Updated July 13, 2020:
Can Ideas Be Protected or Patented?
It’s important to know, “Can I patent an idea without a prototype?” Patents protect innovations and copyright protects expression, but both do not protect concepts. The concept is the primary step, but you won't get intellectual property protection, and exclusive rights will not be issued to you without a tangible or visible form of a concept.
Many good inventors will have trouble getting past the concept point every once in a while. It might surprise you to know that you may already have an invention while not realizing it. You are not required to have a prototype when you submit your application as per U.S. patent laws.All you need to do is to properly describe the invention in order for others to be able to use and make it.
Although you need some sort of tangible or visible form of a concept, you can start by trying your idea on paper. With some direction to get your idea out, you may even have more than you realize. With some 3-D renderings and assistance of an expert illustrator, you may quickly understand that you don't just have an idea, but an invention. A lot of people may have good concepts, but what sets people who can convert their concepts into cash apart from those who can't is the ability to describe the concept enough to change it from an idea into a resource that may in the end be protected.
If you have a story idea instead of an invention, you should consider copyright for protection. Simply begin drafting or building your work. A copyright is automatic and instant when the original document is produced. To claim a copyright, there's nothing special that you need to do, just place the © symbol and call your work copyrighted.You will still need a federally registered copyright to bring legal charges against infringement.Generally, whenever possible, you should register for a copyright, as the filing fee only costs $45.
The poor man's copyright is a myth. This myth says that you can mail your work to yourself, and your idea is protected. It's important for everyone to know that mailing your idea to yourself will do nothing to protect it. Doing nothing to your invention after mailing it to yourself might be used against you later on to show lack of diligence, abandonment, and even suppression and concealment of the idea.
Kinds of Patents
The design patent or utility patent are both options in getting a patent for your invention. If your invention has a unique visual appearance,then you should get a design patent.Whenever you can, it is best to get both utility and design patent. Just recently, the U.S. Court of Appeals for the Federal Circuit made it clear that making the invention requires an idea and a reduction to practice.
The U.S. implemented the first to file rule last March 16, 2013. The U.S. first to file is unique,unlike the first to file laws of other countries. In the U.S., the first to file means you must submit your application first. There could be some exceptions to that, but those are not proven by judicial decisions and are very limited. Inventors should now move with the assumption and understanding that a patent application of some form, even for a provisional patent, must be filed as quickly as possible to claim your rights and to stop others from getting ahead of you to the Patent Office and receiving that patent. You will also want to make sure no one has already submitted a patent application before submitting yours and paying the fee.
It doesn't matter if you can prove that you were holding the invention at some earlier date and time ever since the U.S. changed to a first to file system. Filing your patent application is all that matters.
File a Patent Application Withouta Prototype
A prophetic patent is one that predicts the future instead of reporting the past. You don’t need to submit an example of the working device to the U.S.Patent and Trademark Office. This is called enablement by the U.S. Patent Office (35 USC 112).
If you need help with creating a patent or fighting one you believe should be yours, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.