Is My Idea Patentable?

Written by Steve Holder
July 12, 2008


Many of us have experienced that exhilarating feeling when an idea for a new invention comes to us in a momentary flash of brilliance. That initial excitement usually fades, though, as we eventually realize it won’t really work, or no one would actually want it, or it’s already been done.

But once in a while, the idea persists; we can’t shake it. And we start asking, “Should I patent it?”

Before asking that question, however, there’s a more important question to answer: “Is my idea patentable?”

You Can’t Patent Ideas

Though we often talk about patenting an idea, the Patent Office won’t do it. The idea has to take some sort of form to be patentable. 

The whole premise of a patent is that you receive a temporary government-sanctioned monopoly on your invention in return for revealing its details to the world. The details you provide must be sufficient for anyone who has normal skills in the field of the invention to create or practice the invention based solely on your description of it. 

If you can’t describe it in enough detail for someone to build a working model, it’s not patentable. That usually means to get a patent you have to build a working model yourself, first. When you get there, you’ve moved beyond the pure “idea” stage.

Must be New

Assume an inventor creates a new kind of hair clip, and starts manufacturing and selling it. Next assume he’s been happily making money off his invention for two years without ever acquiring a patent. When the inventor decides he may need to patent the clip because his competitors are realizing his oversight, it’s too late. The patent has to be applied for within the first year after the invention is disclosed to the world. After that, it’s no longer patentable.

In some foreign countries, the patent application has to be filed before an invention’s first public disclosure or it’s not patentable.

Even if no one has patented your invention or anything like it, if the same or substantially similar device has been described in any publication anywhere in the world before you came up with your vision of it, it’s not a new invention and therefore it’s not patentable.

Must be Non-Obvious

This is one of the most controversial issues in patent law and the frequent subject of many a court battle.

The definition of obvious often revolves around an argument such as this: If anyone skilled in the art of the invention would have naturally thought to combine the elements of the invention in the same way when presented with the same problem to be solved, then the invention is considered “obvious” and no patent can be granted. Just because the applicant was the first person to consider the problem and come to the obvious conclusion doesn’t make him or her an inventor.

When you look at an invention and think, “Wow.  What a brilliant idea!” then it probably qualifies as non-obvious assuming you’re familiar with the field. When you look at an invention and think, “Well, duh!” then it probably qualifies as obvious. It’s that gray area in between where some think it’s brilliant and some think it’s a no-brainer that keeps the lawyers and the courts busy.

Must be Useful

Patent applications can be extremely creative works when it comes to describing the usefulness of an invention. For example, patent number 6,561,905 describes a game device that outputs an electrical shock to the loser as being useful to “play games as well as to stimulate the circulation of blood.”

As a practical matter, the patent examiner will accept almost any remote claim of usefulness as long as the invention actually works. Usually, it’s only if an invention doesn’t actually work that the application is rejected for “not being useful.”

Patents for Processes, Business Methods, and Software

The U.S. statutes authorizing patents include patenting for processes, acts or methods. Where originally such patents were largely envisioned and used for manufacturing and chemical or industrial processes, this patent category has been extended to include business process methods and computer algorithms.

There is still a lot of controversy in this category concerning what is simply an idea versus what is an invention. Precedents are being established more frequently in court cases than by legislation. The cases arise when a patent holder brings a claim of infringement on a rival, and the rival counterclaims that the patent is invalid because the “invention” is not patentable.

Patents for Plants

Competition for plant patents is high within the horticulture industry where commercial plant growers strive to create new and popular varieties that they can patent. With a plant patent, the grower can enjoy a 20-year monopoly on the protected variety.

The requirements and restrictions concerning what plants can and can’t be patented are very technical. If you have a plant you think is worth patenting, please refer to the USPTO.gov web site for more detailed information.

Patents on Compositions of Matter

Compositions of matter are specifically patentable. These generally refer to chemical compounds, metal alloys or even formulas for protective coatings, but can also refer to pharmaceuticals and newly created components of living cells.

Design Patents

A design patent applies to the ornamental appearance of a useful article. Coca Cola’s original bottle shape was covered by a design patent. The design patent did not apply to the function of the bottle, but merely to its shape. Design patents provide protection from being copied for a period of 14 years.

Atomic Weapons, Laws of Nature and Physical Phenomena Excluded

Unfortunately, if your new and non-obvious invention is useful only in an atomic weapon, the Atomic Energy Act of 1954 makes it unpatentable.

Patent statutes also specifically disallow patents covering laws of nature and physical phenomena.

If Isaac Newton, Ben Franklin and Albert Einstein had made their discoveries today, it would have taken an incredibly gifted team of patent attorneys to carve out any basis for patent protection for the laws of gravity, the principles of electricity and the theory of relativity.

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