Wondering if you should patent your idea?
Note for this post: I’m not an attorney, although I do hang around many of them and they are all very nice people – so if you have more detailed questions regarding an actual patent or patentable idea, please consult an attorney. I just like inventing stuff.
Ideas are awesome. Of course, many people have said many things about ideas, like “Ideas are a dime a dozen” or “Execution matters more than the idea itself” but if you ask me, everything starts with an idea. The idea is not good or bad in and of itself, it simply has attributes which can determine where the idea goes in life. An idea can be born anywhere and at any time, and some ideas become great businesses. Other ideas are great enhancements to current existing products, some ideas enhance products so well that they completely transform products into something completely new, or refocus products to open completely new markets.
Once you have an idea, what do you do with it? That’s my main concern – some people simply enjoy generating ideas, they never expect to profit from them. Others grab onto an idea and think that it is so amazing that billion dollar businesses can be built on that idea. Others might think that the idea is so unique and new that even though that they cannot afford that time and/or money at the moment to develop the idea into that billion-dollar business, they at least wish to register the fact that they were not only the first to come up with the idea, they want to be able to do something with the idea eventually, so their first thought is: let’s patent it.
As you know, patenting an idea basically allows you, and only you (or your company), to develop that exact idea into a product or service. It’s basically the same as copyright, however instead of being for some kind of content which can be copied (book, blog, audio, video) it applies to a process, or in some cases a visual design (in the case of a design patent).
Patenting allows you to protect your idea from others who might copy or steal it, if someone does, you have recourse through the legal system in order to stop them. Additionally, it allows you to license the idea to others for a fee, and you can get a royalty paid to you each time a product is developed. For example, let’s say that you came up with a new design for a Bluetooth based speaker system which attached to your shower stall so you could listen to music in the shower, and it was connected to your smartphone which is within range. You could give the smartphone rudimentary audio commands from the shower in order to skip to the next song, play again, or play another playlist. Great idea, but you have no idea how to start a company and build these. So you patent the idea, then once the patent has been granted, you can try to license the idea to a company to develop it for you, and then every time a unit is sold, you get a small percentage in royalty off that unit.
Great idea, eh? Only a few small issues: it takes a relatively long time to have a patent issued (up to 4-5 years from filing – there is another option which is faster and cheaper, called a provisional patent, which lets you protect the idea for a year – just enough time to gather the funds to do a utility patent), there is a cost involved (between $12-15k per filing for a utility patent) and the idea itself needs to be reviewed by examiners at the US Patent Office. They are the ones who can determine if the idea is worthy enough to be granted a patent, and there are typically 3 specific criteria which they look for in order to determine patentability.
Also, there is a popular misconception that all an inventor needs to do is to write their idea in a notebook, or mail themselves their idea in a letter in order to date-stamp the day that they came up with the idea, in case someone tries to steal it. Unfortunately, while that used to be the case in the United States (the rule was called First to Invent), in 2013 President Obama signed the “America Invents Act”, which switched the US system over to First to File, which means that in order to “register” the date at which you came up with the idea, you need to file a patent application on it.
These criteria are novelty, usefulness and non-obviousness. In our work, we also add a fourth criteria, visibility, which ensures that if someone is attempting to steal your patent, we can tell.
Novelty is typically the first criteria of patentability in our book. Simply put, if you can answer the following questions:
- Has this ever been done before?
- Has this ever been thought of (and written down, or described publicly) before?
- Has this ever been patented before?
All with a firm “No”, then you may have a patentable idea on your hands.
Here are some examples of ideas which made it through the novelty filter:
The Post It Note – otherwise known as “Releasable adhesive pads “
Twitter – otherwise known as “Device independent message distribution platform “
One of mine, “Automated Friend Finder “, a system to help people find friends on social networks.
In my opinion, there are a few ways in which ideas are novel. Many people believe that there really is nothing new under the sun, and just like all stories are a variation of Joseph Campbell’s Hero’s Journey (aka the monomyth), and that everything is built on something that has come before. If this is true, then all ideas, no matter how novel and new, are simply a combination of ideas which came before, put together in new ways. I’d agree that there are many ideas like that.
Take the iPod, an example I’ve used before. The iPod is a combination of a number of ideas, which culminated into a single breakthrough product. There are no less than 7 patents on the core features and functionality of the iPod, as can be seen here, but it was Steve Jobs who first put it together in the way he did, and the result is history. Who knew that taking an MP3 player, combining it with a portable hard drive, and wrapping it in a novel user interface would be such a hit?
In that case, look at your idea. Is it a combination of a number of ideas, put together in new, novel ways that has never been seen before? If you can answer that question with a yes, it’s time to take the idea to your patent attorney. They will do what’s known as a “prior art search” to determine if the idea indeed is novel.
To assess the novelty of an invention, a search through what is called the ‘prior art’ is usually performed, the term “art” referring to the relevant technical field. A prior art search is generally performed with a view to proving that the invention is “not new” or old.
No search can possibly cover every single publication or use on earth, and therefore cannot prove that an invention is “new”. A prior art search may for instance be performed using a keyword search of large patent databases, scientific papers and publications, and on any web search engine. However, it is impossible to guarantee the novelty of an invention, even once a patent has been granted, since some obscure little known publication may have disclosed the claimed invention.
Don’t try this at home, kids. Not only are patent attorney’s more skilled than you at finding other ideas which are like yours, if you DO this, it may invalidate your own idea. Simply seeing other prior art before you take the idea to your patent attorney could “infect” your idea with elements of the prior art, and therefore when you do finally take it to them, not only will you have to disclose that you saw the prior art, your idea may infringe on another and it will be invalidated. So if you can help it, don’t look at prior art unless it’s your firms policy.
Typically, I prefer that inventors do not do prior art searches on their own, however it depends on the policies of your company towards patents. If your firm wants you to perform your own prior art searches, there are some excellent recommendations at the following sites:
- 5 Crucial Things to Understand About Searching for Prior Art
- Should I Do a Prior Art Search?
- I Can’t Find Prior Art for My Invention
- Five Easy Prior Art Search Tips You Need to Keep in Mind
- Patent Prior Art Search Guide
If you do come up with something like your idea, there is still hope. You will still have to disclose that you saw the previously filed or patented idea, but if you can give your idea a brand new twist, by adding something else new and different, it may pass the novelty filter after all. But that’s not all, there are three more filters to go.
This is a fun one. Many times, people come to me with ideas which are slightly better than something out there and ask “Is this patentable”. Of course, after novelty (can you say that what you are doing is totally new), the next gate that you have to get through is non-obviousness. My definition of that is simply “can it be said that your idea is simply an extension of another idea?” Here are some examples of obviousness, maybe you can spot the pattern:
Making something larger or smaller. For a real life example, look at the iPhone and the iPad. The iPad, while some call it innovative – is it patentable under the non-obviousness criteria? Not in my mind, since its simply, really, just a larger iPhone. It shares most of its components with the iPhone, and apart from the size, and the lack of cellular voice capability, it’s basically the same device
Swapping one thing out for another which could conceivably be used for that purpose, without adding additional differentiating features. Replace a cars steering wheel with a joystick? Or handlebars? Or foot pedals? Probably misses the non-obvious boat. Using brainwaves? That’s not obvious. Maybe that’s patentable
Taking the same thing which works in one space, and doing it in an other. May be a great idea, or a good business, but patentable? For example, Uber for Flowers? Yo for Pizza? AirBnB for cooking? This one is a little trickier, because in many cases you do have to change the model a lot in order for it it work, and in some cases, you will add that new component, while you are changing the model, which will make it non-obviousness. For example, let’s say “Yo for Pizza” – this is obvious, because Yo is a communications tool between people, and one of those people just happens to now be a pizza place. Or Magic, that service that gets you anything you want, within reason, via text. May be a great business idea, but patentable based on non-obviousness, not in my opinion. Say Uber for Flowers, is delivering flowers on demand from hobbyist florists on demand – the only difference is that the delivery is from a non-florist. In fact, a lot of the sharing economy, gig economy businesses are likely not patentable in their business model, however the algorithms that run them may be. We’ll cover that in the final post on “visibility”
Is your idea an obvious extension of something already out there? There are plenty of patentable ideas which are mashups of more than one idea, which is great. If, however, you are simply taking an idea which is already out there, and simply adding a small variation which the original inventor may not have thought of the first time around, well that probably fails the non-obvious test.
The inventive step and non-obviousness reflect a general patentability requirement present in most patent laws, according to which an invention should be sufficiently inventive—i.e., non-obvious—in order to be patented.  In other words, “[the] nonobviousness principle asks whether the invention is an adequate distance beyond or above the state of the art.”
This one is an easy one. Take one look at the invention and ask yourself. “Is this useful?”. There are many, many cool ideas, but if they are not useful, then they probably don’t qualify as a patentable invention.
For example, an artist creates a hammer made of glass. The moment you use the hammer to attempt to hit a nail, the glass shatters. Interesting idea, not useful. Now take that same idea but use a brand new glass formula which is stronger than cast aluminum or steel and just as tensile. The resulting hammer is super light, and surprisingly can hammer nails in even more effectively than a normal hammer, due to the new properties of this glass. Is this patentable on the grounds of usefulness? Heck, yes.
Now remember that “usefulness” is not a good or bad thing, and it has nothing to do with if something is legal or illegal, or culturally frowned upon, or may be embarrassing or weird, or is something you figure could never possibly come to pass, since there are probably laws or regulations against it. When we patent, we forget about all of that stuff – we don’t care if it should be done, we only care if it can be done. That being said, some companies will decline to patent ideas unless they are useful to themselves or their customers, either today or in their future. For example, if you work for a bank and come up with an awesome new food source, they may not patent the idea as they think that they will never get into that business, no matter what happens in future, so that idea won’t get patented through their program. If you still want to go ahead with the idea, before you disclose it to anyone, consult your employment agreement and you companies legal counsel. Typically, once you join a company, any ideas you come up with may become automatically theirs, so check your agreements.
So when you think about “usefulness” it’s entirely possible that you may come up with an idea which has a negative impact on some people, but is really useful to others. Say for example you come up with a tool to manage renters by watching their every move via some internet of things device you install in their apartments. While the renter might hate the idea, the building owner might find it useful. By that criteria, it could be a patentable idea.
This is the final criteria that I personally use with all of our clients. It’s not something that the patent office really cares about, but you probably should. Visibility is the ability for your company to detect if someone else is infringing upon your patent.
For example, let’s say that you patent a new way to display search results based on some super sophisticated algorithm. You patent the algorithm and put it on your site. A few months later, your competitor is showing the exact same results. You assume that they have stolen your algorithm and move against them legally. They disclose the algorithm that they use and its completely different from yours, but in some cases produces the same results. Since neither of you had any visibility into the algorithm which produced the results, there was no way of knowing if the algorithm had been stolen, thus causing all manner of legal fees, etc.
However, let’s say that you patent a specific way of doing ridesharing, and it’s quite obvious that another company is doing it in the exact same way. In that case, the similarities are stark and visible and you may have a case against that company.
Of course, there is nothing stopping you or your competitors from patenting all sorts of invisible stuff, however one of the reasons you patent ideas is to stop others from stealing your idea, if you can’t tell if they have, then that reason doesn’t account for much.
In the first example, it was just as possible that the second company HAD stolen the algorithm and the first company was perfectly within its rights to sue the second company and demand recompense and licensing fees. There was just no way to know unless action is taken. With a visible patent, you can easily tell it’s been stolen.
Once again, I’m not a patent attorney so if you have more detailed questions regarding an actual patent or patentable idea, please consult an attorney.
This is an excerpt from INNOVATION MASTERY: The Definitive Guide To Running The Ultimate Innovation Program available on Amazon in print and Kindle today.
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