Can You Patent an Idea: Everything You Need to Know
Inventors often wonder, "can you patent an idea." The answer is no. On its own, an idea is not enough to earn a patent. 11 min read
Can You Patent an Idea?
Inventors often wonder, "can you patent an idea." The answer is no. On its own, an idea is not enough to earn a patent. However, an idea can easily turn into a patentable innovation. A person or company simply needs to extend the concept so that it has drawings that qualify for a patent.
What Stops a Person from Patenting an Idea?
The federal government wants to encourage innovation. It grants patents so that people and businesses can profit from their inventions.
The problem with this goal is that many people want patents. A patent is a powerful tool that gives the owner certain rights and privileges. The government has to make sure that a vague claim doesn't get a patent.
The United States Patent and Trademark Office (USPTO) reviews each application and rules on the patent request. A successful applicant must meet set guidelines to earn a patent. Many of these rules prevent the patenting of an idea due to their rigidity.
What Does a Person Need to Prove to Get a Patent?
The USPTO requires that each invention meet all of the following criteria:
- Non-Obvious: An innovation must include something that the average layperson in the field couldn't figure out. In other words, an invention has to show some level of creativity that a normal person wouldn't think of.
- Novelty: An invention must have originality. If a patent already exists for the idea (known as "prior art"), an applicant can't patent it again. This is why any patent applicant should do patent searches at the USPTO website before filing for a patent. The patent process takes at least a year and costs thousands of dollars. An applicant wastes time and money by trying to get a patent for something that doesn't meet the novelty standard.
- Undisclosed: An innovation must not have previous recognition. The patent application should stand as the first revelation of the innovation's existence. Even the inventor should not comment on the innovation prior to the patent application. Doing so jeopardizes the chance of a successful patent request. However, there is a 12-month grace period. Disclosures made by the inventor or those who have derived from the inventor will not count as prior art if they occurred within 12 months of when the patent application was filed. Independent third-party disclosures will count as prior art.
- Utility: An invention must do something. Creating simply to create is a worthy aspiration, but it's not a process that will lead to a patent. Part of the application process requires the inventor to prove that the creation has useful functionality. This standard isn't as difficult to meet as the others. The USPTO has a broad interpretation of usefulness.
Any application that cannot meet all four of these criteria will ultimately fail. Even if your invention fails ones of these criteria at first, though, you can take steps to correct the problem before filing for a patent. For instance, during your patent search, you might discover prior art (other inventions) that seem similar or identical to yours. In that case, you can argue that your invention is fundamentally different in some way or narrow the focus of your application to cover only what makes your invention unique.
Are Some Patents Better Than Others?
Three types of patents are available to an applicant. One is much more powerful and popular than the other two.
- Design Patent: An innovator can earn a patent for the physical appearance of something. A "design" is exactly what it sounds like. It's a modification to an invention that alters the appearance enough that it's memorable. For example, a cheeseburger-shaped phone doesn't add any new phone technology. It does, however, turn an ordinary phone into a product that fans of cheeseburgers might want to buy. This patent isn't as good as a utility patent, but it still has value. A design patent has a lifespan of 14 years before the innovation enters the public domain.
- Plant Patent: The plant patent is a specialized type that only applies to a few people and organizations. It's a patent for the inventors and finders of previously unknown plants. These plants must have the capability of reproducing asexually. The inventor must have the ability to replicate this reproduction. Otherwise, the application will not earn approval. The USPTO grants an average of roughly one thousand plant patents each year. That's less than one percent of overall patent approvals. These patents are good for 20 years.
- Utility Patent: This patent is the most powerful type. It's also the one that springs to mind when thinking of a patent. It's proof that a person or company has created something. An innovator receives a utility patent for inventing a new process or item that has usefulness. The holder of a utility patent maintains complete control of the innovation for 20 years from the date of the application. No one can use the innovation without permission from the holder.
The vast majority of granted patents are utility patents. In 2015, almost 300,000 out of roughly 326,000 patents granted were utility patents.
A utility patent gives the inventor protection for four main types of innovations:
- Compositions of matter: These are types of drugs, househould cleaners, and other new formulas that create a new composition.
- Machines: These are new combinations of parts that work together to make a creation with utility.
- Manufacture: These are material combinations that work together to become something. Manufactures are usually products.
- Process: A process is a set of original steps or methods that lead to a better or more efficient output.
Many innovations worthy of utility patents don't fall into a single category. For example, many new products are also machines. Also, many new compositions of matter are also manufactures.
Similarly, some innovations defy categorization. Examples include the following:
- Healthy living supplements and other human improvements
- Rules of human behavior
You can use these four categories to define whether you have an idea or an invention. If you can list your idea in one or more of the utility patent categories, you have an innovation worthy of a patent. If your idea doesn't fit into any of the categories, it's still an idea. You must add more detail to grow it into a design worthy of a utility patent.
What Are the Steps to Apply for a Patent?
You should take the following steps to increase your chances of a successful patent request.
- Keep a detailed record of the innovation: You'll likely update and change your innovation along the way. Take specific notes about each change. That way, you can describe your thinking if you're ever asked to defend your work.
- Verify that the invention meets all standards for a patent: All of the criteria above are non-negotiable. If your innovation fails to meet any hurdle, you need to work on the project more. You should only complete an application once you can meet all criteria.
- Search to make sure that no existing patent matches your innovation: The USPTO receives hundreds of thousands of patent applications each year. With millions of patents already on file, you have the burden of making sure that your idea is original. You should spend hours researching potential conflicts. Hiring a patent researcher to do this step for you is an even better idea.
- Decide whether the invention has commercial potential: This is the most cynical step, but it's an important one. The application fee for a patent is only the first step. You'll face many other financial burdens along the way. The process could cost tens of thousands of dollars. You don't want to invest that much money unless you're certain that you'll earn back more than you paid during the patent application process. Note that low-income applicants do have options. The USPTO created an assistance program to aid inventors without the financial resources to pay for a patent application. An applicant can contact them by phone at 1-866-767-3848 or by email at email@example.com.
- File for a US provisional patent: The goal of this document is to show an early filing date. The applicant later files a regular patent application as well. This is necessary since the USPTO doesn't give out provisional patents. The applicant effectively receives protection for the invention without having to make a formal statement with accompanying disclosures. In other words, a provisional patent lets an inventor keep their innovation private but receive some legal protection until the USPTO grants the final patent. You'll have a year of "patent pending" legal protection. This solution is cheaper during the first year. You receive all protections of a standard patent during that time. After a year, you still must apply for a patent. For this reason, a provisional patent winds up costing more over time.
- Fill out the USPTO application, adding illustrations or renderings: This step is the most straightforward one. You'll want to add as much detail as possible. The notes you took in the first step should help you here. You should also consider hiring an attorney to guide you through this process. A professional who has plenty of experience with successful patent claims will greatly increase your chances of getting the patent you deserve. Note that you can fill out the application online. It's frequently faster to do so.
A provisional patent application (PPA) doesn't mean that you are filing for a patent. Instead, you're gaining a temporary legal protection. Your innovation has patent pending status for a year. It's a simpler, cheaper application process in exchange for a year of protection.
Your fees for a PPA are cheap. You'll pay $65 for micro-entities. A small entitity costs $$130, and a large one is $260. You can decide the level based on your needs.
Your PPA must include a specific description of your invention. You also must explain how to make and use the innovation. Finally, you should include a drawing of your invention. At some point during the year, you have to file the actual patent application. Otherwise, you'll lose your legal protection when the PPA expires one year from the application date.
How Can an Idea Lead to a Patent?
Patenting an idea isn't possible. Turning an idea into something that USPTO will grant a patent for is definitely possible, though. The key is to understand the criteria for a successful patent application.
The USPTO expects something tangible in a patent application. Since an idea isn't tangible, it doesn't qualify. What does qualify, however, is a blueprint, a working prototype, or several other examples that show proof of concept. What an inventor must do is translate the idea into something that a USPTO official can evaluate on its own merit.
This innovation must clear a few more hurdles. It cannot fall into any of these categories:
- Abstract: An abstract invention won't receive a patent. That's because the evaluator won't understand its merit. Without that, proving utility is impossible. A concrete demonstration of concept is what elevates an invention above an idea.
- Artistic Works: A person or organization can copyright something such as a musical piece, a movie, or a painting. Names, logos, packaging, and other symbols that point to the product's source can be trademarked. Patenting these things is impossible, though. The reason the USPTO has trademark in the title is to account for the difference between art and innovation. The agency handles both assignments, but artistic works don't qualify for patents.
- Existing in Nature: Someone can find a new mineral or other valuable resource. The discovery has merit, and protections are available. Since the person hasn't invented or innovated anything, however, a patent is impossible.
- Laws of Nature: Even a previously unknown law of nature isn't something that a person or group can claim as an innovation. It already existed. Mankind simply wasn't aware of it yet. The person in charge of discovery will receive acclaim, but the government won't grant a patent.
Assuming that the innovation doesn't fall into these categories, the inventor's greatest priority is getting the idea down on paper. The USPTO threshold for proving the worth of an innovation is simple. The patent applicant should have the ability to explain the innovation. It should do so in a way that a layperson can use to repeat the process.
An innovator can carry out these goals without offering blueprints. Instead, illustrations are fine in many instances. A 3D rendering is even better. Since the goal is to show the process in easily understood terms, images help.
A person who lacks skill with illustrations or rendering software should hire someone to handle this step. It's a constructive process since the inventor must describe the idea in a way that the other person can understand. It's like practice for the application process.
The applicant should take precautions, though. This person should require any illustrator or graphic artist involved with the process to sign a nondisclosure agreement (NDA). This contract should stipulate that the contract employee cannot speak about the invention. This step protects the applicant from potential violations of the undisclosed stipulation above.
Without the NDA, the second party has the ability to take the idea and either use it or pass it along to a third party. Think of this step as patent insurance.
An inventor who struggles with the process of turning an idea into illustrations can use several internet tools designed to help. These tools force an innovator to define the terms of the idea in a way that leads to easy illustrations of the premise. Using these is a great way to elevate an idea into a worthy patent application.
What Are Some Other Positives About Evolving an Idea Into a Patent?
- Investor attention: In most instances, an investor will show no interest in a person who only has an idea. Angel investors love it when people have researched existing patents and filed a patent application. This shows more initiative and is a better way to attract investors.
- Reducing competition: Once a person turns an idea into something patentable, they gain certain powers. The illustrations become a part of search engines and discourage others from trying to patent similar ideas.
- Invention through participation: Once you're an inventor with demonstrable entrepreneurial skill, you'll receive invitations to various conferences and other social events. These are brainstorming sessions with many of the smartest people you'll ever meet. The conversations during these events will help you think of new ideas worthy of patenting.
- Bragging rights: The patent approval process is notoriously slow. Once a person applies for a patent, however, the individual gains the right to discuss it publicly. This tactic has two advantages. The person can claim leadership in a field due to proven originality. Also, these discussions can damage the potential patent applications of competitors. The public assertions will negate any argument of newness in future patent applications.
- Future royalties: Some people worry about the expense of a patent application. The process is slow and expensive. Still, the benefit is obvious. A person with a patent can license their innovation to one or more parties. The revenue from these licenses is evergreen and requires no future work from the innovator.
- Financial savings: A company that is currently paying a licensing fee for an innovation has an incentive to improve the product. An idea that enhances something with a current patent can gain a new patent. This will save all the money spent in licensing. Technology companies in particular use this strategy often.
Can a Person File a Patent Without an Attorney?
The answer to this question is technically yes, but it's not advisable. Patent searches are an important part of the application process. Similarly, research into existing patents will show whether an innovation shares too much similarity to one previously created. In those instances, the applicant wastes time and thousands of dollars for a patent request that will fail.
You'll need to know some terms if you want to apply for a patent on your own.
- Copyright: This is a legal right of ownership given to a creator. Copyrights protect creative works such as songs, poems, books, movies, computer programs, pictures, sculptures, and architectural designs.
- Intellectual property: The person who comes up with an idea owns it. The terminology is precise here. Someone's intellectual creations are the person's property.
- Trademarks: These are names, logos, and symbols that give an identity to a product or service. Examples include the way that Apple designs its products, Coke crafts its distinctive bottles, and Disney animators draw Mickey Mouse.
- Trade Secret: These are creations that would ruin the mystery of something if revealed. As an example, KFC brags about its secret recipe for fried chicken in commercials. The publication of this recipe would allow other people to copy the cooking process for KFC chicken.
Given the above, the best idea is to hire a lawyer at a reasonable rate. To find one, post your a job 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, Stripe, and Twilio. Many of these attorneys have years of experience with the patent application process.