Under U.S. law, you cannot patent an idea. Understanding how the law differentiates ideas from inventions is a great way to learn some of the core tenants of patent law.
updated November 21, 2023 · 5min read
The simple answer is no—you cannot patent an idea for an invention. The invention itself has to be produced or a patent application containing the invention must be filed with the U.S. Patent and Trademark Office (USPTO).
While all inventions start with an idea, not every idea can be called an invention. Understanding the difference between ideas and inventions is critical to understanding the core ideas about patents, what a patent is, how to get a patent, and when to file a patent. Here are a few things to keep in mind.
There are many different kinds of patents, but when most people talk about patents, they usually mean utility patents. Utility patents protect four kinds of things. They are:
In reality, many inventions are combinations of these categories. For example, a new telecommunication system may combine processes and machines. Or, a new kind of concrete may combine new combinations of existing materials as well as completely new chemicals.
One way to tell if your idea is an invention is if you can describe it in the terms utility patents protect. If you cannot tell if it is a process, a machine or some combination of the two, your invention may still be an idea, which you cannot patent.
Even if your invention fits under the law, not everything can be patented. Determining which kinds of inventions are protectable will further help to determine if your idea is an invention.
In addition to what can and cannot be patented, patents have to be novel and non-obvious. For inventors, that means that the invention has to be completely new.
Being novel means that no one has ever made the same invention before. Your invention is totally new has never been described in a publication or in a patent application. No one has ever made the exact same thing.
A non-obvious invention is one that wouldn't be apparent to others. The mere idea to combine two known things is not something you can patent. There must be something new about how the things are combined or why the inventor selected the things. It is the selection of the things or the way that the things are combined that elevates the obvious idea to a non-obvious invention.
You determine novelty and non-obviousness by searching for other patents, patent applications or publications related to your invention, collectively called patent art. If you find one patent that describes all the steps of the process you invented then it is no longer novel. If you find an article outlining half the parts of your new machine and a patent application that teaches the other half, then your invention is obvious.
Online resources make patent searching easier than ever. If someone has already invented your invention, it is better to find out now rather than after your second round of investment.
Ideas are hard to search for. If you have not sufficiently focused your idea into an invention, then it can be too broad. For example, it is hard to search for a machine unless you know the exact parts that it is made from. Likewise, it is hard to search for a process unless you know all its steps.
If you have a hard time starting your patent search or if you are not getting any meaningful results, then your idea may not be an invention yet.
Even if you do find prior art, you have a few options:
The line between invention and idea is blurry. Patent law gives you the tools to measure your idea as an invention and the guidance to refine your idea further to make the best invention that you can.
by Joe Runge, Esq.
Joe Runge graduated from the University of Iowa with a Juris doctorate and a master of science in molecular evolution...
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