Can You Patent an Idea?

Can You Patent an Idea?

by Joe Runge, Esq., October 2014

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. As you are wondering if your idea is an invention, here are a few things to keep in mind.

Utility Patent: When an Idea Becomes Reality

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:

  1. A process. A process is any combination of steps or methods.
  2. A machine. A machine is any combination of parts.
  3. A manufacture. A manufacture is a combination of materials to make something new.
  4. A new composition of matter. A new composition of matter could be a chemically new substance, like a drug or other formula.

In reality, many inventions are combinations of these categories. A new telecommunication system may combine processes and machines. A new kind of concrete may combine new combinations of existing materials as well as completely new chemicals.

One early way to tell if your idea is an invention is if you can describe it in the terms of the kinds of inventions 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.

What You Can Patent and What 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.

Inventions cannot be too abstract. For example, if your invention is a mathematical formula not tied to any particular process or application, then it is not a patentable invention. It actually has to help someone make a decision, move a machine in the real world, or otherwise make something useful happen.

Inventions cannot be natural discoveries. If you are fishing in the backwoods and pull a mysterious new fish from the pond then you cannot patent it—even if you are the first one to ever find it. You have to do more than discover something to get a patent. You have to purify it, modify it, or incorporate it as part of a bigger invention.

Inventions must be defined. You discover a plant extract that is a potent antioxidant. In low concentrations it treats acne and, you speculate, that in high concentrations it could reverse heart disease or cure cancer. While your acne treatment is likely an invention, you almost certainly need to do more work to formulate the antioxidant to treat heart disease and cure cancer. You need to define the scope and not overstep your great invention to describe an intriguing idea.

Patent Requirements

In addition to what can and cannot be patented, patents have to be novel and non-obvious. Those words have very specific legal meaning but, for inventors, it 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: it 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, in light of all the patents and publications available, would not be new. Could someone have come up with the same inventions if they read a combination of patents or publications?

Obviousness is frustrating to inventors—anything can be obvious in retrospect. The mere idea to combine two known things is not something you can get a patent for. 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.

The Patent Search for Prior Art

You determine novelty and non-obviousness by searching for prior art: other patents, patent applications or publications related to your invention. 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 teaching half the parts of your new machine and a patent application that teaches the other half, then your invention is obvious.

In the 21st century, online resources make patent searching easier than ever. You want to find prior art early. 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; 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:

Fight it. You can argue that the prior art does not apply because it is from a different field or it is not exactly the same as your invention. If you find a patent teaching all the steps of your process for making beer, but to make fermented cabbage then you can argue that beer making and cabbage fermenting are fundamentally different. You can argue that the prior art is too unrelated to your invention.

Dodge it. You can narrow the scope of your invention and focus more on what makes your invention different. If someone teaches all the same parts of your machine, add some additional parts to your invention.

Accept it. Novelty is supposed to be difficult. Even the best inventors have ideas that someone has already published or patented. There are always more inventions to invent and sometimes fighting prior art just is not worth it.

Idea or Invention?

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.

Ready to start a patent search for prior art? LegalZoom’s Patent Search service helps you identify existing patents or published applications. Or, if you’re ready to file, LegalZoom’s two-part Utility Patent service gives you a preliminary assessment with a USPTO-registered patent attorney or agent, a comprehensive patent search, plus professional technical illustrations of your invention for a low, flat fee.