Is your idea patentable? Two vital things to consider…
A question I get all of the time is: “Is my idea patentable?” And I answer it the same way, every time. In the eyes of the U.S. Patent and Trademark Office (USPTO), there are two critical thresholds your idea must surpass: your invention must be both novel and it must be unobvious.
(1) In terms of novelty, your invention must be totally unique. It can’t be the same as any other invention previously invented or described somewhere in print. If your invention has been disclosed somewhere (such as in a printed article) or if it has been made and sold to the public, you will not pass the novelty threshold of the patent office.
(2) In terms of unobvious, this one is a little more difficult to describe — but let me try. Even if you create an invention that has never existed before (thus passing the novelty threshold as described above), the essence of your invention still has to be non-obvious to someone who is “skilled in the art”. In plain English, that means someone in the field of your invention wouldn’t think it’s obvious to make your invention by simply tweaking a characteristic of an existing invention. For example, if you claim to invent a light bulb that is twice the size of an ordinary light bulb, it wouldn’t pass the “unobvious” threshold because someone in the field of lighting would see it as an obvious change to an existing product. In general, simply changing material composition, colors, dimensions, and other fundamental characteristics of existing products would be flagged as obvious by the U.S. patent office.
If you’d like to see how the U.S. patent office describes the above two characteristics of novelty and non-obviousness, you can check out the following link to a page that’s on the USPTO.gov Web site: http://www.uspto.gov/web/offices/pac/doc/general/index.html#novelty
Bottom line: Your idea is only patentable if it is both novel and unobvious. If you believe your idea passes both thresholds — congratulations! That’s a huge milestone in the invention process. But don’t stop now. Keep the momentum going. Read about the entire patent application process in this Web site.
– Eric
Is the idea patentable? I got a fancy head cap. I purchased that in far country. I like to fabricate it and sell it in USA. There is no patent on it and I am sure no one patented that before. Can I patent it as my own, in regards to the Patent Office article below?
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(The applicant shall make oath that he believes himself to be the original and first inventor of the process, machine, manufacture, or composition of matter, or improvement thereof, for which he solicits a patent; and shall state of what country he is a citizen. Such oath may be made before any person within the United States authorized by law to administer oaths, or, when made in a foreign country, before any diplomatic or consular officer of the United States authorized to administer oaths, or before any officer having an official seal and authorized to administer oaths in the foreign country in which the applicant may be, whose authority is proved by certificate of a diplomatic or consular officer of the United States, or apostille of an official designated by a foreign country which, by treaty or convention, accords like effect to apostilles of designated officials in the United States. Such oath is valid if it complies with the laws of the state or country where made. When the application is made as provided in this title by a person other than the inventor, the oath may be so varied in form that it can be made by him. For purposes of this section, a consular officer shall include any United States citizen serving overseas, authorized to perform notarial functions pursuant to section 1750 of the Revised Statutes, as amended (22 U.S.C. 4221).
Hi Ted.
I think you answered your own question with your quote (above) of 22 U.S.C. 4221.
Note that the first sentence says: “The applicant shall make oath that he believes himself to be the original and first inventor of the process, machine, manufacture, or composition of matter, or improvement thereof, for which he solicits a patent…”
Since you said that you purchased the head cap in another country, you can’t be the original and first inventor. Only that person, whoever she or he is, would be allowed to file a patent on the invention.
The location of the invention is not a consideration. The invention, since it already exists, is what is called “prior art”. And a patent application can’t be filed on prior art.
Sorry I don’t have an encouraging answer for you. But at least you won’t be spinning your wheels on a patent application that would be invalid.
Don’t be too disappointed. Keep your thought processes and imagination rolling until you come up with an idea that is truly original. Perseverance is the hallmark of every inventor I know.
Best of luck!
– Eric
Eric, I have invented a game and, after doing a patent search on my own, I discovered a game similar to mine, but different in many ways! I will use an unrelated example to explain my invention. Lets say soccer had been invented which uses players to run the whole field and put the ball in a goal! My invention all though similar would require teams to stay on there side of the field boundary line, use a different kind of ball, and different type of goal, with completely different rules! Would my game then be patentable? Also, the patent filed on this game was filed in 1985 which has exceeded its 20 year limit! If I cannot patent my game because its to similar then, can I market my game? The similar game has exceeded its 20 year protection limit and, if I can, how do I protect it from some bigger company stealing it? Maybe through trademarks, my games name? Hopefully it can be patent an I do not have to worry about it! thank you Eric! Curt
Hi Curt.
Thank you for your question.
This is a tricky one. A lot depends on how unique or “unobvious” your invention is over the the current game. Take a look at my post entitled, “Is your idea patentable? Two vital things to consider….” Here’s a link: http://patent-your-inventions.com/?p=35
Particularly focus on the “unobvious” aspect. See if you think your invention would past this test.
As far as the other patent being expired, that puts the other invention in the public domain. In most cases, that means anyone can now copy, produce, and market the invention. And, since you say it is similar to your game, it would be what’s called “prior art” that you would have to disclose in your patent application…and then explain (in your patent application) how your game is better and unobvious.
If you believe your invention passes the “unobvious” test, then a patent might be the best way to go. Again, review other posts — particularly the ones that discuss unobviousness.
I hope I’ve helped. Congratulations on your invention!
– Eric
[...] Is your idea patentable? Two vital things to consider… [...]
Hi Eric,
I’ve designed a snowglobe. What makes it unique is the base and the subject matter inside. Can you patent a design? What would stop someone from copying it? I’m an artist that could use some good advice.
Thanks Eric
Hi Brad. Glad to answer your question.
Yes, you can patent a design. In fact, there is a patent type that is specifically for that purpose called (not surprisingly) a Design Patent.
Check out my post called: “Three types of patents. How to choose the right one for your invention.” You can get to that post quickly via the following link: http://patent-your-inventions.com/?p=28. You’ll see a paragraph that I wrote specifically regarding Design Patents.
In addition, the U.S. Patent and Trademark Office (USPTO) provides excellent information on this topic on a Web page entitled: A Guide to Filing a Design Patent Application. You can get that information via the following link: http://www.uspto.gov/web/offices/pac/design/index.html
I believe the above information will give you a great start in determining the patentability of your snowglobe invention. Let me know how it goes. Best of luck with your invention!
– Eric
Hi,
I have came up with an idean that is novel and unobvious. I am using two concepts to create an invention. Would either of those companies that created the products that I am using be able to sue me in any way even though I am just taking bits and pieces of their product?
Also since I have a phsical prototype would this speed the patent process up?
Eric,
We have a product that we’ve actually been manufacturing and selling for at least 8 years, but from what I can tell, no one else makes anything like we do. Is that going to be a problem getting a patent since it’s already been sold to the public? Is it still novel?
Hello Phoenix.
I recommend being extremely careful whenever you intend to use bits and pieces of products of other companies. It is a hard and fast rule that I don’t provide (or even infer) legal advice. So it is important that I don’t open that door.
Regarding your second question: Building a physical prototype is an excellent step in the process. As I mentioned in another reply to a similar question, creating a prototype can give you significant leverage in case of a patent dispute down the road. According to U.S. patent law, if two inventors invent the same device and file a patent application at the same time, the inventor who first built and tested the invention (in patent lingo, reduced the invention to practice) will receive the patent.
Best of luck with your invention!
– Eric
Hi Clayton.
Sorry to say, it looks like the “one year rule” will prevent you from patenting your invention. Check out my post precisely on this topic at the following link: http://patent-your-inventions.com/?p=37
If after reading the above-referenced post you still have questions, let me know.
I wish I had better news for you. Best of luck with your invention endeavors.
– Eric
Hello. I have an idea for a board game. I’ve already created it and constructed the blueprints. I want to patent it and sell it to Milton Bradley or some other company. What are the necessary steps i should take?
Hey Eric,
I have an idea which is an addition to a mobile phone. I have no idea of the workings of a mobile, and wouldnt know how to write a program for this addition but know that all mobile phone producers would be interested in including this on their phones. Would I be able to patent my idea?
Be glad if you could get back to me?
Regards,
Sam
Hello,
I have an invention that I believe will help train your average dog much easier, it is simple yet not developed. There are however a few people that have come up with some home made ideas as I did when I googled it. I started using this training tool about 6 years ago and never followed up on it. I do not know if I was the first to say I have invented it but I can say by doing the searches it is not patened or listed anywhere on the above mentioned sites. I can also easily say I came up with it on my own. Do you believe I may have a shot here?
Eric,
I thought I had a completely novel idea for invention, but before I started building my prototype I decided to research this on the internet to see if it had been done before. Much to my dismay it had already been done (although done differently and and with some aspects that I believe are inferior to my plan). My question is could I build, patent and market this item as long as the mechanics of it are completely different and it accomplishes its task in a different way. For example, say my idea was to build a mousetrap (think of the already exsisting item to look like the traditional mouse trap with the clasp that slams down on the wooden plank), but my idea traps the mouse but does it in a different way using different materials. Do you think I would be able to Patent this.
Thanks in Advance
John
I want to design an over the counter drug or behind the counter(sold by Pharmacists only), but not prescription. What is the best way to apply for a patent. What types of pictures and information do they need. I have the write ups of the compounds that are being used, but I am not sure they need the manufacturing process. Companies already make these two drugs generically.
Hi Eric I have found your website very useful but cant find my question.I had an idea and conducted a patent search and found that it was patented however the mechanism that I intend to use is different and has my idea has some /different extra features is that patentable? or is the venture not worth getting involved in because the other party will claim infringement rights?
Hi Rory. Thank you for your question.
I get many questions regarding board games. So much so, I am going to write a post about it in the very near future. But to answer your question: Your best first step (in my opinion) is to file a patent application prior to contacting a board game manufacturer. This Web site is designed to give you tips and insights regarding the patent process.
In addition, you may want to take a look at other board games that have been patented. An easy way is to go to the fine free service offered by Google called Google Patents — http://www.google.com/patents/ — and then simply type in “board games” into the search box. For instance, you’ll find a patent for a hockey board game. Here’s the direct link to that patent: http://www.google.com/patents/about?id=LUsDAAAAEBAJ&dq=6068259.
Check out the posts in this Web site and example board games patents. Those two steps should give you a great start in the steps you would need to take to patent your board game.
Best of luck with your board game invention!
– Eric
[...] Is your idea patentable? Two vital things to consider… [...]
Hi Sam. Thank you for your question.
Well, it is impossible to say whether or not you could get a patent on your invention. All inventions have to pass at least two critical thresholds. Check out my post entitled, “Is your idea patentable? Two vital things to consider…” You can jump to that post via the following link: http://patent-your-inventions.com/?p=35
I recommend that you objectively evaluate your invention against the two criteria described in the aforementioned post. That will be a good place to start. After that, if you think your invention is patentable, you need to then read my post entitled the “Two most important steps in the invention process” at this link: http://patent-your-inventions.com/?p=7
Give those steps a try. I believe you will end up with a good sense for the patentabilty of your invention.
Glad to help!
Hi. Glad to answer your question.
This is a similar question posed to me from another reader (Crae) a few days ago. It was about improvements to vacuum cleaners…and how improvements can, in some instances, be patentable. Let me paste a snippet of my post to Crae below. I believe you will find it helpful:
I don’t know specifically about the Dyson vacuum cleaner — but there are many many patents that are vital improvements to the basic idea. Your question piqued my curiosity — so I went to Google Patents — http://www.google.com/patents — and typed in “James Dyson vacuum cleaner”. Boy, some very interesting results. Check out his patent from 1992 entitled “Dual cyclonic vacuum cleaner with disposable liner” Here’s a link to it: http://www.google.com/patents/about?id=dVIgAAAAEBAJ&dq=james+dyson+vacuum+cleaner
You’ll see Dyson’s patent cites nine other vacuum-cleaner patents. You’ll read how his invention is an improvement on (or differs from) all of these exiting devices / patents.
I hope the above information is helpful. Best of luck with your invention!
Hi Joe. Thank you for your question.
A word of caution: If you have an inkling (or have seen evidence anywhere) that your invention already exists, then you shouldn’t file a patent application on it. As I mentioned in a previous post — http://patent-your-inventions.com/?p=139 — an inventor must swear (under penalty of perjury) — that the invention is his or hers entirely.
You mentioned that your research has uncovered some “home made ideas”. Ff the product already exists, no matter how crude, and regardless of whether or not the product is patented (or has ever been patented), the invention is said to be in the “public domain” and cannot be patented.
I wish I had better news for you, Joe. But I want to make sure you were aware of this very important legal requirement.
If I can provide additional advice, please don’t hesitate to ask.
Hi John.
A previous reader had a similar question. You may want to review this post and see if you believe your invention passes the novel and unobvious thresholds: http://patent-your-inventions.com/?p=35. The other red flag is that you say the idea has “already been done before”. So your hurdle is a bit steeper. Your implementation has to be entirely “unobvious” to someone in the field of the invention (as the patent office says, “skilled in the art”). If it is not unobvious, you probably shouldn’t file a patent application. As I mentioned in a previous post — http://patent-your-inventions.com/?p=139 — an inventor must swear (under penalty of perjury) in the patent application — that the invention is his or hers entirely.
Take a fresh, objective look at your idea and see if you feel it passes the above-referenced requirements. That gut check should give you a good sense as to whether or not you should file a patent application.
Best of luck with your invention!
Hi John.
I don’t have any experience in the pharmaceutical field — so I don’t have a specific answer for you. However, I just went to Google Patents — http://www.google.com/patents — and typed in the word “pharmaceutical”. I recommend that you do the same. You’ll see a wide range of example pharmaceutical patents that should give you a ton of ideas for any patent application that you might consider. See how other issued patents are structured. I believe it will be a great help in your thinking.
I hope the above idea helps. Best of luck with your invention!
Hi Eric,
I have a simple device for back traction. I found a similar version that has been patented. I have not filed a patent because I am not sure if it will pass the novel and unobvious thresholds. My problems is that I want to market my version because the patented version is not on the market and I know my patients and other patients need it.
If I market it, can I be gone after for infringement…after all, there are many types of similar bicycles, IPOD types, TV types, etc.
Thanks, Julie
Hi Julie.
This is an excellent question. Thank you for posting it.
I have just launched a new Web site — http://www.HowToPatent.pro — that encompasses all of the material on this site, plus will be my platform for information regarding a number of additional patent- and invention-related topics (such as invention marketing — which has been a very popular question). If I could ask a big favor for you to do a “copy ‘n’ paste” and post your question at http://www.HowToPatent.pro, that would be greatly appreciated. I will then respond to your question at the new Web site. Thank you, again!
– Eric
Can mousetrap be configured and added to a structure to create a new patent?
Hi Eric,
Thanks for the great site – the information is such a big help! Unfortunately, I just realized my idea has already been patented (in 2009). I’ve also noticed a similar designed product is already on the market (being sold by a different person who doesn’t appear to own a patent that was just issued last year). Is it possible that the person who brought the product to market is already infringing on a patent even though the patent was filed after a product was already for sale online? This kind of confused me.
I would like to look into the possibility of obtaining permission to use the design and was curious how royalties work. Would I propose (for example) a certain percent on each unit sold – if they were willing to work with me? Also, should I work with the person who owns the patent or the person who thought of the idea first? Not sure how to proceed. Any advice would be much appreciated.
Thanks in advance.
Josh
Hi Scott.
I always like “mousetrap” questions. They’re fun to answer.
I have just launched a new Web site — http://www.HowToPatent.pro — that encompasses all of the material on this site, plus will be my platform for information regarding a number of additional patent- and invention-related topics (such as invention marketing — which has been a very popular question). If I could ask a big favor for you to do a “copy ‘n’ paste” and post your question at http://www.HowToPatent.pro, that would be greatly appreciated. I will then respond to your question at the new Web site. Thank you, again!
– Eric
Hi Josh. Thanks for the detailed and insightful question.
I have just launched a new Web site — http://www.HowToPatent.pro — that encompasses all of the material on this site, plus will be my platform for information regarding a number of additional patent- and invention-related topics (such as invention marketing — which has been a very popular question). If I could ask a big favor for you to do a “copy ‘n’ paste” and post your question at http://www.HowToPatent.pro, that would be greatly appreciated. I will then respond to your question at the new Web site. Thank you, again!
– Eric