1. What Ideas Can Be Patented?
2. How Does the USPTO Determine Whether To Issue a Patent?
3. What Are the Steps To Patent an Idea?

Non patented ideas are not protected by a federal patent issued by the United States Patent and Trademark Office (USPTO). To qualify for a patent, an idea must be brand new, have some utility, and not be obvious to anyone with typical skill in the associated industry. Having a patent means that no one else can make, use, sell, or distribute the invention for a period of 20 years.

What Ideas Can Be Patented?

An idea refers to a creation that has been imagined but not yet prototyped, produced, or manufactured. Rather, it is a concept in the earliest stage of the invention process, documented only in notes or sketches. Certain ideas, such as product names and logos, are not covered by patents but instead by trademark or copyright.

Patents are reserved for products with usefulness, including but not limited to computer software and hardware, mechanical devices, biotechnology, and methods for manufacturing or production. Abstract ideas, mathematical equations, laws of nature, basic computer processes, and natural phenomena are not patentable.

If you have an idea and are wondering whether it can be patented, ask yourself the following questions:

  • Is the idea completely different from existing technology?
  • Could someone in the field make or use the idea based on your detailed description?
  • Would the idea not be obvious to someone with typical skill in the field?

If you don't already have a detailed description of your idea, you may want to consult with a patent attorney. He or she will be able to advise about the required level of detail for a patentable invention in your industry.

An idea that has already been publicly disclosed, whether in a blog or online post, live presentation, video, or patent application, is not eligible for patent protection.

How Does the USPTO Determine Whether To Issue a Patent?

Section 35 of the U.S. Code defines which items can be patented. The list includes:

  • Composition of matter, such as a pharmaceutical or paint formula.
  • Manufactured items such as a table or notebook.
  • Machine.
  • Process.
  • Improvement to an already patented item.

When reviewing a patent application, the USPTO considers the following elements that determine patentability.

  • Novelty: This means that nothing else like your idea has ever become public knowledge anywhere in the world, including previous patents, published works, goods already for sale, and traditional practices.
  • Usefulness: Your idea must serve a purpose, solve a problem, or otherwise display true utility.
  • Non-obviousness: A person with typical skill in the field covered by the idea couldn't intuitively come up with the invention. Examples of inventions that are obvious include those that create predictable results from combining prior art elements, trading one element for another, or applying a known technique to an existing device.

If the USPTO rejects your application on the grounds of non-obviousness, you may be able to successfully appeal by arguing that others have failed to create a similar invention, the idea fills a long-held need, the product has succeeded commercially, others have copied the invention, or unexpected results are produced from the existing prior art. This would also include a substantial improvement over the expected results.

What Are the Steps To Patent an Idea?

Once you determine that you have a patentable idea that fits the criteria of novelty, non-obviousness, and usefulness, you should decide whether you want to seek patent protection. This depends on whether you want limited or perpetual protection for your invention, and whether you want to shield your idea from the public or just from your competitors.

When you decide to file a patent application with the USPTO, it will be reviewed by a patent examiner. This individual will compare your idea to prior art to determine if it can be issued a patent. Once the patent is issued, you can sue anyone who uses the invention without your permission for patent infringement in federal court.

You may want to file a provisional application before filing the more detailed patent application. The provisional application is simpler and protects your idea for one year, during which time you must file the standard application. This is also a smart route if you need more time to work on your idea.

If you need help with patenting an idea, 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.