August 3, 2017
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What Can You Patent?
Before you go about the process of seeking a patent, it’s important to understand exactly what a patent is. A patent is a type of intellectual property right that the government grants to an inventor over their invention. Specifically, in the language of the law itself, a patent confers on the inventor, “the right to exclude others from making, using, offering for sale, or selling” that invention in the U.S.
What Qualifies for a Patent:
In order to qualify for a patent, an invention must be categorized as belonging to one of the following classes of statutory subject matter: processes, machines, articles of manufacture, or compositions of matter. Furthermore, a qualifiedly statutory invention must further be deemed “new”, “useful”, reproducible, and “nonobvious” in order to receive a patent, according to the following specific definitions of those terms:
What Qualities Make Something Patentable?:
1) New:
An invention is considered new if it hasn’t been known about or used by other people, described in media, and hasn’t previously been the subject of a patent application filed prior to the date of your application. In the United States, patent law allows a grace period for particular actions taken by an inventor, like public uses or disclosures, occurring within one year of the application date. If you have taken such an action within one year of filing for a patent for your invention, you will not be barred from obtaining a patent.
2) Useful:
Your invention must have a useful application or utility in order to be patent-worthy.
3) Nonobvious:
Your invention is nonobvious if it differs from the prior art of the relevant field in such a way that a person with an ordinary level of skill in that field would not expect it. In order to receive a patent, an invention must not be something predicted or anticipated in its field.
For more information on what patents are and what can be patented, check out this page on the United States Patent and Trademark Office website: https://www.uspto.gov/patents-getting-started/general-information-concerning-patents.
Ideas and Inventions: Reproducibility Matters
A common misconception about the patenting process is that people seek patents for their ideas. However, it is critical to note that you may not patent an idea; only inventions are eligible for patents. Strictly speaking, ideas are free for everyone under U.S. law. Of course, ideas are certainly important to the process of invention, and by extension, to the patenting process, as well. It is just crucial that one knows the difference between an idea and a patentable invention. In many cases, an inventor might think they have only an idea, when in reality they have a potentially patent-worthy invention. So how are you to distinguish between the two?
The crux of the difference between a mere idea and an invention is the level of detail and specification with which your invention is described. According to the law, a fully-fledged invention should be able to be fully replicated and used properly by a third party familiar in the field following only the description of that invention given in its patent application. While your patent application doesn’t need a blueprint level of detail, it should be specific enough for someone skilled in the relevant field to carry out your invention after reading the patent application.
Developing Your Invention
Given the importance of a detail to the success of your patent application, you will need to have technical drawings, or perhaps even 3D renderings of your invention to include in your application. Your patent attorney should have the resources to assist you with this. Now, what if your idea hasn’t quite made it to the invention stage yet, and requires further development before you are ready to apply for a patent? Should you find yourself stuck in the process of developing your idea into an invention, there are several ways you can go about getting the assistance you need.
First, you might try to find a local college or graduate student in the field of study pertinent to your idea to help develop your invention. If there is a college or university in your area, get in contact with the faculty of the relevant department to let them know you have an opportunity for students. Many students are eager for opportunities to hone and showcase their skills in order to improve their employment prospects after graduation, and they will often work for less than established professionals in the field.
You may also want to approach friends, family, and other people you know with your idea. While they may not be experts in the field, they may be able to provide surprising tips or direction that will help you on your way. Local inventors’ groups might also prove helpful in developing your idea to a patentable invention. Inventors’ groups exist all over the country, and provide a space for new and experienced inventors alike to share tips and bounce ideas off each other.
Keeping Your Invention Confidential
Do keep in mind that if you’re planning on sharing your pre-patent invention idea with anyone other than your attorney, you’ll want to have them sign some form of confidentiality or nondisclosure agreement (NDA) first. A nondisclosure agreement is a contract between two or more parties making a legal agreement to keep information conveyed between them confidential. There are different kinds of nondisclosure agreements, and you will want to choose the type of NDA most appropriate for the situation in which you’re sharing your idea.
Even if you’re sharing with someone who is close to you and whom you trust not to steal your idea for themselves, such as a friend or family member, you can lose your right to keep your invention as a trade secret should you discuss your idea outside the protection of an NDA. A non-threatening Simple Confidentiality Agreement is probably the most appropriate in these circumstances. For cases in which both you and the other party are sharing confidential information—for example, if you’re bringing your idea to an inventors’ group—you will need a mutual confidentiality agreement, which obligates both contracting parties to maintain secrecy. In cases where you will be the only party sharing confidential information—with a prospective investor or licensee, perhaps—then you will likely want a unilateral confidentiality agreement that binds only the receiving party to secrecy.
Working with Your Patent Attorney
While it is possible for an inventor to file for a patent independently, it is highly recommended that you seek the help of a qualified patent attorney in drafting and submitting a patent application for your invention. Paying for an attorney may seem like a lot of extra costs upfront, though you should know that patent law is quite complicated, and there are a number of very technical rules and statutes that must be satisfied in order to successfully acquire a patent. It is advisable to work with an expert in order to navigate the complexities of patent law, and to avoid cutting corners in the early stages of your invention that could turn out to be extremely costly in the long run. Another possible outcome of working with a lawyer who doesn’t fully understand what you’re trying to achieve is that they may be over aggressive, causing you to pay too overreach. Worse still some patent attorneys can be under-aggressive, which may cause you to miss out on some valuable monetization opportunities.
Once you’ve found a patent attorney who has agreed to work with you, you should prepare yourself by writing up a brief description of your invention and conducting a preliminary patent search. Note that it is part of your attorney’s job to conduct an in-depth patent search as part of the application process, so you should not expect to be doing that for yourself. Your attorney has the expertise and knows all the tricks of the trade to get the results in a patent search that you will not be able to achieve independently. However, conducting a preliminary patent search in order to get a sense of what existing patents are out there and how your invention differs from previously patented inventions can prove to be helpful groundwork for discussions with your attorney. Your attorney will also be responsible for conducting the relevant research and helping you to acquire drawings and any other visuals you might need for your application.
Here’s a tool from the USPTO website to help with your preliminary patent search, though keep in mind it can be tricky to fully suss out wether there are related or similar patents already: https://www.uspto.gov/patents-application-process/search-patents.