Key Takeaways

  • Patent protection helps secure exclusive rights to an invention, preventing others from using, selling, or profiting from your idea.
  • Inventions without patents face risks like competitors copying the idea or someone else securing patent rights first.
  • Certain inventions are non-patentable by law, such as abstract ideas, natural phenomena, and scientific principles.
  • Examples of non-patented yet widely used inventions include the computer mouse, the ballpoint pen, and even Coca-Cola’s recipe.
  • Inventors may choose trade secrets or public domain status as alternative strategies to patents for protecting their ideas.
  • Failing to understand patent eligibility criteria can lead to missed opportunities or costly mistakes.

Inventions Without Patents

Inventions without patents may lead to legal and financial headaches, whether you're the original inventor or you infringe on someone else's design. It's important to take the necessary steps to protect your inventions — including getting the necessary patents — to prevent someone else from profiting from your work.

Why Some Inventions Remain Unpatented

While patents offer exclusive rights, not all inventors pursue them. Inventions may remain unpatented for several reasons:

  • Public Disclosure: The inventor may have publicly shared the invention before filing for a patent, forfeiting eligibility.
  • Cost of Patent Filing: Obtaining and maintaining patents can be expensive, making it impractical for small inventors.
  • Strategic Decision: Some businesses choose trade secret protection (such as for recipes or formulas) rather than disclosing details through a patent.
  • Non-Patentable Subject Matter: Some inventions do not meet the legal standards for patentability, including novelty, non-obviousness, and utility requirements.

Risks Associated With Not Obtaining a Patent for Your Invention

Someone else can patent it. In many countries (barring the United States), the first entity or person to apply for a patent has the right to it. If you don't patent an invention or an invention that your employees created, another person can get a patent for it if they develop the same invention (or an equivalent version) later on. That person or entity can then exclude you from the market and limit your activities in relation to the invention. You could also have to pay a licensing fee to use the invention.

Competitors can take advantage of your invention. If you create a successful product, competitors will attempt to design the same product without paying you for the use of your invention. Big enterprises can often produce products cheaper than smaller enterprises. These big companies can offer a more favorable price, which can reduce your market share for your product. Even a small competitor could produce and sell a product like yours at a lower cost because it doesn't have to recover the costs put into research and development.

Your ability to do any of the following will be hindered:

  • Sell
  • License
  • Transfer technology

Transfers of technology, with no IP rights, are very difficult, and in some cases, impossible. Having the necessary IP protection makes it easier to transfer technology because it implies ownership of that technology.

Examples of Inventions Without Patents

Numerous well-known inventions either were never patented or lost their patent protection over time. Examples include:

  • Computer Mouse: Originally developed by Douglas Engelbart, this innovation was never patented by him, allowing widespread adoption.
  • Ballpoint Pen: Laszlo Biro patented the pen, but his original patent expired, making it available for mass production without royalties.
  • Coca-Cola Formula: Rather than patenting the recipe (which would have required public disclosure), the company chose to protect it as a trade secret.
  • Wright Brothers' Airplane Controls: Early patents did not fully cover all control mechanisms, which led to litigation but also left gaps competitors could exploit.
  • Post-it Notes (initial adhesive formula): While the product was patented, the specific formula for the adhesive took time to refine and was initially shared within the company without formal patent coverage.

These examples show how important strategic decision-making can be when it comes to intellectual property protection.

Avoid These Common Mistakes With Your Invention

1. Selling it. In the U.S., once inventors first sell their product, they have 12 months in which to file a provisional or non-provisional patent application. After 12 months, their right to obtain a U.S. patent for that invention is forfeited forever.

If you file an application for a patent that doesn't sufficiently detail your invention and begin selling the product, you might discover later on that your filed application didn't establish priority. You may have to start from square one and file a new application.

2. Using it publicly. Using your invention publicly may lead to the same issues as an offer for sale or a sale. Once you begin to use an invention publicly, you have 12 months from that time to apply for a patent. Once the 12 months have passed with no patent application, you won't be able to get a patent on an invention that was publicly used.

For foreign rights, you'll have to apply before using your invention publicly. In many countries outside of the United States, there's no grace period at all.

To be on the safe side, it's best to not use your invention publicly before you have the chance to file a suitable, adequate patent application.

3. Obtaining bad provisional patent applications. A provisional patent application can be great when used correctly. When you don't use it correctly, the effects can be devastating. It's easy to file a provisional patent application. You only have to complete a cover sheet and attach a description of the invention. You don't have to write the description in a specific way, and the Patent Office won't even look at your provisional application.

Because of this, unsuspecting inventors sometimes use cheap service providers to file a provisional patent application, but they're still required to describe their invention with the same amount of detail that's called for in a non-provisional application.

It's easy enough to file a provisional patent application and have a “patent pending,” but without providing the necessary amount of details related to your invention that patent laws require, this provisional application is worthless.

Inventions without patents simply aren't worth it. Protect your investment and idea by taking the necessary steps to patent your creation. That way, you'll retain important rights that could make a huge difference in your legal and financial future. Even if you only file a provisional patent application, avoid the bargain basement route and have it done properly to avoid legal hassles.

Types of Inventions That Are Not Eligible for Patents

Patent law excludes certain categories of inventions from being patented. Common examples of non-patentable inventions include:

  • Laws of Nature: Natural phenomena or discoveries, such as gravity or genetic sequences found in nature.
  • Abstract Ideas: Mathematical formulas, algorithms (without specific application), or pure business methods.
  • Scientific Principles: Fundamental scientific concepts without practical application.
  • Literary, Artistic, and Musical Works: These fall under copyright law, not patent law.
  • Surgical Methods: In some jurisdictions, medical procedures and treatments for humans are excluded from patent protection.
  • Perpetual Motion Machines: Devices that claim to operate indefinitely without an energy source are often rejected as scientifically impossible.

Understanding these restrictions helps inventors avoid wasted time and resources on non-patentable ideas.

Frequently Asked Questions

  1. What happens if I don't patent my invention?

    If you don’t patent your invention, others may legally copy or commercialize your idea, and in some cases, they might even secure a patent on it before you do.

  2. Are there inventions that legally cannot be patented?

    Yes. Inventions like natural laws, abstract ideas, artistic works, and some medical procedures are typically excluded from patent protection.

  3. Can trade secrets be an alternative to patents?

    Absolutely. Many businesses choose trade secret protection—such as Coca-Cola’s formula—to avoid public disclosure while maintaining competitive advantage.

  4. Is it ever better not to patent an invention?

    Yes, sometimes keeping an invention as a trade secret or placing it into the public domain can be more beneficial, depending on the invention’s nature and business strategy.

  5. Can I patent an idea if I already shared it publicly?

    In the U.S., you have a one-year grace period after public disclosure to file for a patent. However, in many other countries, public disclosure before filing may permanently forfeit patent rights.

If you need help with filing a patent, 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.