Can You Patent An Idea Before Prototype – It is often said that you cannot patent an idea, but you can patent an invention. This statement confuses many people who ask:
What does this mean to you? If your idea has structure to it, then it is more than a simple idea and probably qualifies as an invention. In general, if you can draw a diagram of your invention, explain how the invention works, or build a prototype of your invention, you are likely well on your way to having a patentable invention.
Can You Patent An Idea Before Prototype
It’s true, most of the time that people approach us to research and then patent their idea, it qualifies as an invention. So, from this point on, we will use the words idea and invention interchangeably.
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So how do you patent your idea/invention? First you’ll want to consider the criteria your idea must meet to get patented. Then, if your idea meets these criteria, there is a process to obtain a patent. We will discuss both in detail.
To have the greatest chance of success, it is always a good understanding of the criteria for patents and understand the patent process. This way when you hire a patent attorney to help you get a patent, you will get more value for your time and money.
A patent is a type of property right. Specifically, it is an “intellectual property right” on your idea. Intellectual Property is the area of ​​law that deals with the ownership of ideas. Patents are one type of intellectual property. Compared to patents, trademarks, rights, and trade secrets are also intellectual property.
A patent gives the patent holder the right to exclude others from making, using, selling, or importing anything within the scope of the patent. Patent protection means you’ll have exclusive control over your great idea, and you can shut others out of the market.
From Idea To Prototype
The United States Patent and Trademark Office is the government agency that considers applications for a patent, makes determinations about who should be granted a patent, and then actually issues patents to inventors.
Can you patent an idea? Before you file a patent application for your idea, you need to determine if the idea is patentable.
“Any person who invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement therein, may obtain a patent therefor, subject to the conditions and requirements of this title.”
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First, to patent an idea your idea must be novel. The applicable patent law establishes a definition for novelty. Essentially, for an invention to be novel, it must be different from anything else that was previously available in the world. This is often not difficult, because novelty simply requires that your ideas differ in some way from previous inventions.
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This criterion for obtaining a patent is not as strict as it may sound at first blush. The law does not prohibit, for example, a patent on an improvement of an invention that has already been patented. As a simple example, even if there may already be a patent for a car, if you have an invention for a car that has some small differences that allow it to travel faster, this car would likely meet the novelty criteria.
As long as your idea has some elements that are different from other ideas it could be built on, your idea can meet this requirement.
And to get a patent your idea must be “not obvious.” To be non-obvious, you need to consider what would be obvious to a person of ordinary skill in the art of the invention. If someone in your field could easily see your idea based on prior art, it probably won’t meet this requirement.
What is art before? The term “prior art” simply means all information available to the public prior to the date you filed your patent. There are databases filled with prior art, which we will discuss further.
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Another way to think about whether your invention is not obvious is that your invention may not be trivial. It must be outside the range of what people in the field would normally think they could do. If your invention is obvious based on all publicly available information, it cannot be patented. If this non-obvious determination sounds very subjective, that’s because it is!
Patent Office employees, called patent examiners, review patent applications and make a determination as to whether an idea is non-obvious. These patent examiners are guided by a specific set of rules when making this determination.
Essentially, patent examiners will look at the totality of the circumstances and make a decision based on all available prior art. However, the reasons behind why a patent examiner makes a non-obvious determination are not always cut and dry. They can also be subjective decisions. This means – the opinion of the examiner often enters into the determinations. In fact, patent attorneys are often surprised by the decisions made by these examiners.
Although sometimes it is a matter of opinion, some things will almost always be considered obvious. If your invention makes only minor changes to a previous invention, then it probably won’t be eligible for a patent. These types of minor changes may include changes in an invention’s size, color, or shape, but without making any changes to the way the invention operates.
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Because of this, an essential starting point is to have a good understanding of the previous art related to your idea. Knowing the closest ideas allows you to better understand how your idea differs from any related invention before.
Finally, to get a patent your idea and invention must be useful. According to traditional patent standards, to be useful, to patent an invention you must have:
While this may sound difficult to meet, the definition of utility in patent law is relatively broad. Generally, it is not difficult to meet the utility requirement. Typically non-utility items are things like ‘perpetual motion machines’ – machines that claim to create energy without gas.
To get an invention patent you just need to operate to make an intended purpose in the world. In other words, it cannot have only a speculative or possible future use.
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Note: The United States Patent Office will not patent an invention that is an abstract idea, a natural phenomenon, or a law of nature.
Generally, a “utility patent” protects how something is used and works. A utility patent prohibits others from making, using, or selling your idea without your permission.
Utility patents typically expire 20 years from the filing date of the patent application. Utility patents also typically require maintenance fees that must be paid several times in order to maintain the patent for the full term, and will expire early if the fees are not paid.
A utility patent is usually more technically complicated than a design patent. Utility patents can also have multiple claims under the same patent application, while design patents can only have one claim.
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Because they are more complex utility patent applications also typically cost more than a design patent application. This is because utility patent applications usually require more time and effort to write applicable specifications and claims.
Unlike a utility patent, a design patent does not protect the function of a product, it just protects the way it looks. This includes the shape and configuration of a product, as well as the applied surface decoration. In some cases, a design patent can protect both the shape and the decoration.
A design patent costs much less than a utility patent, and is usually easier to obtain than a utility patent. Design patents, unlike utility patents, expire 15 years from the date of patent issuance. Design patents have no maintenance fees or renewal requirements.
There are many factors to consider when filing for a patent and obtaining patent protection. The process can be long, time-consuming, and very expensive. You can also go to great lengths to obtain a patent, only to find the patent is essentially worthless.
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For example, most patent applications are rejected at least one. This means you may need to submit multiple versions of your single patent application.
The filing costs of obtaining a patent are an important consideration. Patent filing fees can add up, especially for complex ideas that require multiple patents to be filed. Attorney fees are also a consideration. Depending on the complexity of an idea, the patent examiner assigned to the application, and how much research you do in advance, attorney fees can range widely.
If you do everything yourself, at the very least, a patent application will cost several hundred dollars. However, the competent preparation of a patent application can start from a few thousand dollars for a design patent and can reach up to $40,000 for complex ideas such as computer software.
It is also important to consider the value of your time. While it may sound like a good idea in theory to complete a lot of the work yourself, many of the steps are very complicated and can be very beneficial.
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