Is My Idea Patented Already: Everything You Need to Know
Patents give you legal rights to own the intellectual property on your product or idea in such a way that you can seek legal recourse if it is infringed upon.10 min read
2. There are Three Steps to Discover Whether an Idea is Patented Already.
3. How to Find Out If Someone Has Already Patented Your Idea
4. Searching is Easier than Ever
5. What to Look For
6. Hits and Misses
7. How to Conduct a Patent Search to Make Sure Your Brilliant Invention Doesn't Already Exist
8. How Do I Know If My Idea Is Patentable?
9. How to Search a Patent
10. There's A Patent on My Idea! What Now?
11. Review the Claims
12. Consider a License or Buyout Agreement
13. What is the Difference Between a Published Application and an Issued Patent?
14. Is the Patent Active?
15. Discuss Your Options With an Attorney
Updated October 26, 2020:
Is My Idea Patented Already?
People can easily discover whether an idea is patented already. In fact, people that don't take the time to research whether their idea is patented already prior to moving forward in the patent application process can waste a lot of resources unnecessarily.
Patents give you legal rights to own the intellectual property (IP) associated with your product or idea in such a way that you can seek legal recourse if it is infringed upon. The United States Patent and Trademark Office (USPTO) checks your concept compared to present patents and pending patents.
Your patent will probably be rejected if it is too similar to a present patent, and you will lose the application fee. If you discover concepts that are similar to yours, you may still be able to patent your concept if you present on the application of how your product or concept is new and distinct. You'll be able to search for present patents through the USPTO's online database or in person at an area workplace.
There are Three Steps to Discover Whether an Idea is Patented Already.
Go to the official website of the U.S. Patent and Trademark Office. Use the "Full-Text and Image Database" search to verify any present patent applications and pictures. You can find filed applications and pictures for patents filed after 1975. You can search copies of images and applications filed between 1790 and 1975. You can even search for present patents utilizing phrases that describe your concept. It's important to verify all options that may be relevant to your concept.
Find the Patent and Trademark Depository Library nearest you. The workers will help you research patents and answer questions on similarities between your concept and a present patent. Use the library search on the U.S. Patent and Trademark Office's official website to find a library in your state.
Contact the USPTO's Public Search Facility in Virginia at 571-272-3275 for details and to schedule a meeting at their office. You'll be able to enter various patent search databases, including some patents outside the U.S. USPTO workers will also provide analysis assistance and a free system coaching lessons.
How to Find Out If Someone Has Already Patented Your Idea
Let's say you have an amazing idea that you want to patent. The first step in patenting a concept is to conduct an extensive patent search, as mentioned briefly above. It is crucial to know what different patents are on the market and how they relate to your idea. A patent search is vital for identifying if you can get the patent you want.
Searching is Easier than Ever
The USPTO allows the entire database to be searched for patents. Providers like Google also index patents. Via the internet, inventors can look at sources, particularly for a U.S. Patent search, to find existing patents.
You should repeat a number of patent searches using many different key phrases. Search patent databases early in the process, so you will know if somebody has already patented your invention. Then you can change course or invent something else.
What to Look For
To complete a search, it's important to know the elements of your idea or invention that are unique. You need to identify what is unique about your product, service, or system new and completely different. Break down these options into search queries or phrases.
Let's say your product is a brand-new visor that prevents harmful rays while also using solar power to charge headphones. The unique element of this invention is the duality of safety and practicality. When conducting a patent search, you'll want to include keywords like visor, solar, headphones.
Broaden your search phrases with any attainable synonyms that you can imagine (e.g., hat oR caps and earbuds OR speakers). Continue to refine your search to get a variety of hits. Write down the search results and know how many hits you received for each search.
Hits and Misses
Your search is completed and discover no other inventor holds a patent to your idea. However, you do find a similar patent. Someone invented an analogous clasp for a stroller. It's completely different, with an even bigger spring and different formed clasp, but it shares many similarities with your invention. Even when somebody has not been listed as patenting your idea, your search is essential. A patent must be novel.
You cannot ever patent an invention that is identical to a patented one. Regarding the stroller clasp example, the patent workplace might argue that your purse clasp is an apparent alteration of the stroller clasp and that the only actual distinction is the dimensions. While you draft your patent, it is best to incorporate particulars that make it easy to argue that your purse clasp shouldn't be apparent: maybe the small measurement of the spring requires particular supplies or the form of the clasp has to incorporate a selected angle.
It is important to acknowledge in your application the similar patented stroller invention. Reference it in your patent and embrace particulars that differentiate your invention over the stroller clasp. Conducting a patent search is vital even if you are simply putting in an application for a provisional patent.
Even there are no active patents on your invention, you will need to know what else is on the market.
How to Conduct a Patent Search to Make Sure Your Brilliant Invention Doesn't Already Exist
What if somebody else already invented an identical product and patented it? How will you ensure that a patent on your invention isn't already taken? There are two steps you can take:
1) You can rent a patent legal professional (for a fee) to run a patent seek for you, or
2) You can conduct a patent search yourself.
Conducting a patent search yourself will use extra time and brainpower, but it might save a significant amount of money, which may be sufficient savings to help you launch your dream services or products.
If you decide to run your individual patent search, there are many sources obtainable online that can assist you in navigating the various and sometimes difficult steps in the process.
Fortunate for you DIY varieties, the USPTO provides an inventory of seven steps necessary to execute a radical, efficient search. The exhaustive, acronym-packed information covers every step you need to follow to apply for and hopefully obtain a patent.
How Do I Know If My Idea Is Patentable?
A patent is a set of unique rights that an inventor may obtain for a restricted time period in the trade of a detailed description of an invention. Usually, a granted patent utility should embrace a number of claims that outline the invention.
A patent could embrace many claims, each of which defines a selected property. These claims should meet related patentability necessities, comparable to novelty, usefulness, and non-obviousness.
To see if your idea is patentable:
First, verify that your concept qualifies. Second, study the fundamentals of the patenting process. Do a search for of all earlier public disclosures that concern your invention. These public disclosures are known as prior artwork.
Prior artwork contains any patents associated with your invention, any articles discussing your invention, and any demonstrations. You might want to hire a registered patent legal professional or agent to do a patentability search for prior artwork. A large part of the patentability search is trying to find U.S. and overseas patents that compete together with your invention. After a utility is filed, the USPTO will conduct their own patentability search as a part of their official examination.
How to Search a Patent
Conducting a radical patent search is troublesome, significantly for the novice. Patent looking out is a discovered ability. A novice in the USA might contact the closest Patent and Trademark Depository Library (PTDL) and hunt down search consultants to assist in organizing a search technique. In case you are within the Washington, D.C. space, the USA Patent and Trademark Workplace (USPTO) gives public entry to collections of patents, logos, and different paperwork at its Search Amenities situated in Arlington, Virginia. It's attainable, nevertheless troublesome, so that you can conduct your individual patent search.
You shouldn't assume that your concept has not been patented even when you discover no proof of it having been filed with the patent office. It is very important do not forget that a radical examination on the USPTO could uncover U.S. and overseas patents in addition to non-patent literature.
There's A Patent on My Idea! What Now?
With more than 8,000,000 patents issued at this point and thousands of more patents issued weekly, chances are high that patents have been issued that might relate to your small business or concept. Knowingly infringing on an active patent can result in disastrous penalties for your small business. Individuals who have hired a patent legal professional have already taken the ideal first step. Patents are authorized paperwork and might be extremely obscure for individuals who are not properly versed in the language of patents.
Speaking to a patent legal professional is invaluable when dealing with a patent situation.
Review the Claims
Once you have discovered that the idea has a current patent, you will need to look at the claims made in the patent. These claims will be located at the back of the document and will detail the scope and legal protection that the owner of the patent has. These sections can be hard to interpret but each claim will be on an individual line.
How broad or narrow the claims in the patent are will show you whether or not your idea falls under the claims of the patent. Therefore, this may be the best time to consult with a patent attorney. If your attorney determines that the claims of the patent are not similar to the idea they can request a clearance opinion to formalize the finding. Gaining a clearance opinion can be vital as it can be used for defense for both:
- Inequitable conduct
- Willful infringement
This opinion may be the difference between having to pay punitive damage if you are ruled against in court later on.
Consider a License or Buyout Agreement
If you come across a patent that is active and the claims can read on your idea, you still may find other options available. There could be a patent but the patent holder has not produced or practiced the idea. In this case, they may look at a licensing deal that is either:
- Exclusive - This type of license allows you to be the only party able to produce it.
- Non-exclusive - This means the patent holder can give licenses to multiple entities including your competitor.
A patent holder can also make the license transferable or sub-licensable in the event a merger or acquisition occurs.
Most often a patent holder will exchange licensing rights in exchange for a portion of the profits or equity in the company they are licensing it to. This is a great way to secure a licensing deal even if you don't have funds to start with.
Another option you may have is to purchase the patent form the patent holder outright. This option usually requires money upfront and is not always an option for a business starting out. Yet, if the patent covers a very broad scope, the investment could be worth it as a way to block out other competitors and establish yourself in the market. It is important to remember that you will avoid the time, money, and hassle of trying to file your own patent as well.
What is the Difference Between a Published Application and an Issued Patent?
It is very important to know the distinction between a patent application that has been published and one that has been issued. A patent application that is published doesn't necessarily mean that it is active, although it could in the future change into one. You can easily determine if a patent is legitimate by looking at the serial number that should be published on the patent application. This patent serial number will begin with the application year, which is followed by a slash and then eight sequential numbers (e.g., 2011/01234567). An issued patent is often only seven digits long and does not refer to a selected year.
The most recent patent points will begin with an 8 million quantity (e.g., 8,765,432), whereas earlier patents begin with lower numbers (e.g., 7,654,321).
Is the Patent Active?
As soon as you are granted your patent, your next step is to ensure that the patent continues to be active, which means that the patent was not abandoned and hasn't expired. Many of the more than 8 million patents that have been issued to date have expired due to the patent's age or have changed into abandoned patents for one reason or another. Patent owners must pay ongoing charges to keep their patent active. Non-payment of these maintenance fees will cause a patent to become abandoned. Fortunately, the Public PAIR system has an easy tool to verify whether or not the patent has changed into an abandoned status. Public PAIR will not show you expired patents.
Patents that are considered new are ones filed on or after June 8, 1995. These newer patents have a time period of 20 years from the earliest filing date. On the other hand, older patents which were filed before June 8, 1995, have a lifespan of 17 years from the date they were issued.
Patent Calculators are sometimes used to determine the expiration date of an active patent. However, if you're looking to find the earliest effective filing date for the patent, a patent calculator will not be much help. Patent Calculators do not take into consideration Terminal Disclaimers or Patent Term Adjustments. Terminal Disclaimers are typically found on the front of a patent and tie a patent's expiration date to that of one other patent and might lower the lifespan of a patent.
The USPTO grants Patent Term Adjustments, which are also found on the front of the designated patent, because of delays in the course of the prosecution of the patent utility and to prolong the length a patent is active.
The PAIR system won't specify whether or not a patent has been discovered invalid because of litigation. Thus, it's best to talk with an expert who is aware of the way to carry out this verify and consider the outcomes.
Discuss Your Options With an Attorney
A patent attorney that specializes in licensing and acquisition deals may be able to help you come up with the best option whether it be a licensing deal or patent acquisition. An attorney will also be able to help you negotiate terms for both types of deals.
Don't give up at the finding of a patent, often times patents are never realized and inventors are all too happy to look at creative approaches to get their product in the mainstream and make money on it even if they cannot bring it to market themselves.
If you need help getting your idea patented, 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.