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Can My Idea Be Patented?

You are a patient and creative worker. You encounter problems, and you think of solutions to fix them. One of your solutions is so effective that you are thinking of patenting it.

You’re asking questions about how to file your patent application and who to consult with, but first, you need to ask yourself this question, “Can my idea be patented?”

Here is a guide to answering that question and toward expediting your patent process.


Patents, Trademarks, and Copyrights 


A patent is a government-granted authority that provides you with the exclusive rights to make, use, and sell your invention. No one else will be able to produce your invention or make money from it. A patent has a specific legal meaning, but outside the courtroom, patents are sometimes confused with trademarks and copyrights.

A trademark is a protection for a word, phrase, or design that distinguishes one individual or company’s products or services from another. Marketing slogans, logos, and even smells receive trademarks.

A copyright is a protection for an original creative expression. Films, novels, songs, and art pieces receive copyrights.

If you are making a creative work, whether it be something that advertises a product or a piece of art, you should not pursue a patent. If you are creating a product, a new component of a product, an improvement over an existing product, a process, or a new composition of matter, you may pursue a patent.


The Utility of Your Invention 


Under United States intellectual property law, a patent can be granted to an invention if it meets four tests: patentable subject matter, utility, novelty, and non-obviousness.

Addressing the differences amongst patents, trademarks, and copyrights means you have passed the first test. Your invention has taken the first step towards being patentable, because it is a product, process, or composition of matter that you need an exclusive right to make, use, and sell.

At its core, utility means that your invention has a use for common consumers. However, you also have to prove that your invention directly impacts a problem and that your invention’s impact comes from unique components within your invention.

Write out an explanation of your invention, one that can be read by a non-expert in your field. If you can explain in precise detail how your invention is made, what the problem is that you are trying to resolve, and how the components of your invention directly resolve the problem, then your invention has utility.


The Novelty of Your Invention 


Novelty means that your invention has not been known or used within the United States, and that your invention has not been patented or described in a printed publication anywhere in the world.

To meet this test, you have to do research. Google Patents and Espacenet are two free online databases that catalog patents. If you cannot find a patent or publication that closely resembles your invention, your invention is novel.

If you do find an invention that is similar to yours, you can always adjust your invention or adjust your application. Focus on the more unique characteristics of your invention and explain how the unique components directly resolve your problem.

If you have the resources, you may want to hire an intellectual property attorney. Attorneys can examine print databases and give you advice on how to distinguish your invention from others. Though, if you are looking for a more cost-effective patent solution, you can learn to prepare and file a patent on your own with our Learning Center.


What is Non-Obviousness? 


Non-obviousness means that your invention provides a substantial improvement to a problem that is not an obvious extension of previous inventions. You can patent an invention to solve a problem that other inventions try to solve. However, if a person of ordinary skill in your field can look at previous inventions and easily conceive your idea, your idea is obvious.

Talk to your friends and family about your invention and others in your field. Explain the utility and novelty of your idea, how you will manufacture it, and what its benefit would be to them. Ask them if they ever thought of your idea when they encountered a similar problem.

If they say your invention is obvious, hone its design and research your field to differentiate it from existing inventions. If they think your idea is non-obvious, then it probably is.


Which Patent to Get


If your idea is patentable subject matter, has utility based on its unique design, is novel in your field, and is not obvious to a person of ordinary skill, then your idea can be patented. You now have to determine which patent to use.

A utility patent applies for a processes, an invention, a part of an invention, an improvement over an existing invention, or a new composition of matter. A design patent applies for the visual design of an invention, but not its functional features. You may have to apply for both a utility patent and a design patent to fully protect your invention.

A plant patent applies for new plant varieties. You do not have to file for both a utility patent and a plant patent.


How to Apply for a Patent


The process of filing a patent is pretty much the same regardless of which patent you choose. You will first fill out application forms from the United States Patent and Trademark Office (they can be found online). Then you will write several documents explaining your invention, including an abstract that summarizes your invention, a specification that fully details your invention, claims that explicitly define your invention, and patent drawings that illustrate your invention and its individual components.

You will have to pay filing fees to file your application, and you may have to wait an extended period of time before hearing back from the Patent and Trademark Office. Be prepared to provide any details they may ask for. If you have not hired an attorney before, you may want to do so before filing your application, asking them to review your work for any errors you may have made.

If you do not want to spend $10,000+ per patent application, you can also visit our Learning Center to learn how to prepare and file your own patent applications.

You can also expedite your path to a patent with this additional guide.

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