Have you ever suddenly had a “genius” idea? Maybe you’re using something in your home and come up with a better way to do it. Or maybe you read about a new technology and thought “I can make that even better!” No matter how your ideas come to you, you’ve likely had that moment where you think you are the first to invent a new product or a new way of doing something.
You start imagining all the riches you’ll acquire when you sell your new invention. But, wait, you remember something the “sharks” are always asking on the hit NBC show Shark Tank.
Do you have a patent? Are you patent pending?
Uh oh, you better get some patent protection before you begin your journey to becoming the next Steve Jobs!
But an important question still remains: Is your new idea patentable?
What does it mean to be patentable?
An idea is patentable if it is patentable subject matter, new, non-obvious, useful, and enabled. These criteria come from the United States patent law under 35 U.S.C. Although these seem like simple criteria, there can be much more nuance to whether an idea satisfies each of these categories. Here is a more detailed explanation of what these mean.
Patentable Subject Matter
The idea must fall within one of the four statutory categories. The idea must be either a process, machine, manufacture, or composition of matter. This criteria ensures that one does not get a patent on an ineligible subject matter such as a law of nature, a mental process, or abstract ideas.
Novelty
The idea must be new. Something is new if it is not already known, used, or described in a prior patent, publication or public use before the filing date of your idea. This criteria is what those unfamiliar with the patent application process usually think of when they think about patents. Novelty ensures that you can only patent something that is new.
Non-Obviousness
The idea cannot be obvious to a person of ordinary skill in the relevant technology field at the time of the invention. Non-obviousness ensures that a patent is not granted for something that an ordinary person would think of. It ensures that there is an inventive step in the invention. As an example, it would be obvious to change the color of a coffee pot. Therefore, the United States Patent and Trademark Office (USPTO) would not grant a patent for a coffee pot that is only different because it has a different color.
Utility
The idea must have a specific, substantial, and credible use. It must work as described in the patent application and provide a practical benefit. An example of a non-useful invention would be using genetically modified mice as snake food because all mice can be used as snake food and using expensive mice for snake food is not a real world use.
Enablement
Your patent application must describe your idea clearly and completely so that a person of ordinary skill in the art can replicate or use it without undue experimentation. This means that you have to provide enough written description and details on how to make and use the invention. This criteria exists because in order to be granted a government monopoly on your idea, you must share with the public how the invention works and is made.
How will I know if my idea is patentable?
The only way to truly know if your idea is patentable is to file a non-provisional patent application with the USPTO and prosecute your application until it is allowed. If you are able to retain an experienced patent attorney, they can review your idea and give you a good estimate about whether your idea is patentable. But, even the most experienced patent attorney will not know whether your idea is patentable until it has gone through patent prosecution at the USPTO.
Can a patent search tell me if my idea is patentable?
A patent search cannot definitively tell you if your idea is patentable. However, it is a great tool to give you a better idea of what other inventions exist that could potentially render your idea not novel or obvious.
What is a patent search (aka prior art search)?
A patent search is a search done of existing patents, published patent applications, and other documentation such as technical jounrals to find relevant and related disclosures. It is sometimes called a prior art search. It involves searching databases all around the world to see if there is any prior art that matches your invention.
When you receive the results of your prior art search, you (and your patent attorney) can review the other publications to make a more informed decision of whether your idea is novel and non-obviousness. For example, maybe you think you’ve invented a new coffee machine that runs on solar power. However, when you perform your prior art search you may find that there are dozens of other patent applications for solar-powered coffee makers.
At this point, you will know that it may be a good idea to take some more time to refine your idea. Maybe your truly genius invention is not that the coffee maker is solar powered, but that it uses a new type of battery storage system for solar-powered coffee makers. That may be a better patent application to file because you may have a higher change of securing a grant and patent protection.
What is the best way to find out if my invention idea is patentable?
The best way to find out if your invention meets the criteria for being patentable is to file a patent application and get the patent process going. However, it is not the best idea to try getting a patent without a patent attorney. Getting a patent can be a complicated process and finding a patent attorney to help you navigate through the patent office will likely improve your odds of securing a patent.
Conclusion – only the USPTO will answer whether you’ve invented a patentable innovation
Whether your idea is patentable can only be determined through the application process at the USPTO. You cannot have the same idea as someone else in the world and it must not be obvious in light of the prior art. Most people never take the step to find out if their idea is deserving of protection. However, now you know that if you truly want to find the answer, you can file an application to protect your idea and discover its patentability.