Patenting An Idea: Possible or Not?

Patenting An Idea- Possible or Not? To answer the above question is pretty simple. It is a NO! An idea can never be patented. It is the invention that has to be patented. It is true that the root behind any invention is an idea but always an idea cannot lead to an invention. An idea is defined to be as a ‘formulated thought or opinion’. An invention is usually the end result of an idea that has matured. It is more “tangible” and defined and can be legally patented, licensed and/or trademarked.  Once you get to know the difference between an idea and an invention, it would be easier to understand what all criterions an invention must follow in order to be patentable. Still pondering whether your idea can be an invention? Let’s discuss in detail.

Utility Patents

They are patents that cover the creation of a new or improved and useful product, process or machine. A utility patent, also known as a “patent for invention,” prohibits other individuals or companies from making, using or selling the invention without authorization. These patents are issued by the United States Patent and Trademark Office (USPTO).

These patents are applied to a broad range of inventions such as,

  • Machines- A combination of moving parts
  • Articles of Manufacture- A combination of materials to create something new
  • Process- A combination of steps or methods
  • Composition of Matter- It can be a new composition such as a chemically new substance.

A preliminary way of determining whether your idea can be an invention is by first finding out whether the idea describes itself in the terms of kinds of inventions utility patents protect. If you are unable to tell if it is machine or article of manufacture or process or composition, then the invention is yet to be an idea.

Also Read: Patent Strategies for Startups

What can you Patent and what not?

An invention can still not be patented even if it describes itself under the realm of utility patents. It is thus important to know which kinds of inventions are patentable.

Too Abstract Invention

If the invention is something like a formula that cannot be practically implemented, cannot be associated with any particular process or application then the invention cannot be patented. The formula must be able to help someone make a decision, drive a machine or make something useful. If not, then the invention is abstract and not patent worthy.

Natural Discoveries

If you are strolling in your garden and suddenly spot a new (may be unearthly) insect, you cannot just go and patent it. This is regardless of the fact whether you are the first one to spot it. A discovery will not be able to fetch a patent. You have to work further on your discovery, modify it so that it becomes useful or can be a part of much bigger invention.

Defined Invention

Suppose you discover a new type of plant protein that can be used to cure Eczema in very low concentration. This is definitely a great invention. But if you claim that the plant protein if used in higher concentration can cure skin cancer too- then you need to work more to find out the right concentration. In simple words, the scope of your invention should be well defined. You cannot just claim it without practically proving it.

Patent Requirements

Apart from the fact of what can be patented and what not, an invention must be novel and non-obvious. Though both the terms have altogether different legal meaning and define distinctiveness of an invention but to an inventor it will be the same- the invention should be the first of its kind in the associated field.

By the term “novel” we mean that the invention is completely different from all previous inventions or “prior-art” in one or more of its constituent elements. An invention will fail to succeed the novelty test if it was described in a published document or put to public use prior to the date of filing of patent application.

The term “non-obvious” is a little more challenging. An invention is considered nonobvious if someone who is skilled in the particular field related to the invention would find it as an unexpected or surprising development.

Also Read: Requirements for filing a Patent in India

Prior-Art Search

The novelty and non-obviousness of an invention is determined by the prior-art search. Prior art in the context of patent searches is any publicly-available evidence that the invention was already known previously. Prior art does not need to be a physical product or be commercially available. If you come across a patent where the steps of processes of your invention have been described in detail, then the invention is no longer novel. If you come across a research publication demonstrating half the parts of your invention and a patent application describing the other half, then the invention is obvious.

Thus much before filing a patent application, a proper prior-art search is an absolute mandate. In modern days, it is much easy to conduct a prior-art search online due to the availability of various softwares and tools. Also, it should be remembered that the prior-art search is for an invention and not idea. An idea is hard to find as it is much broad in sense, an invention is much more streamlined and focused.

If you have to struggle a lot for your patent search without achieving any meaningful results, then your idea may is yet to be an invention. Still, you can take one of the below actions:

Fight it: You can argue that the prior art does not apply as your invention and the prior-art doesn’t belong from the same field or they are not exactly same.

Avoid it: You can further streamline your invention by removing the conflicting points and thus narrowing the scope of your invention and focus on its individuality.

Accept it: The ultimate thing that you can do is to accept the fact that your invention in not novel and is obvious. Though accepting the fact is heart-breaking but it opens the scope of further innovative ideas and research for an inventor.

Also Read:

What is the best time to File for Patent Protection in India?

Bursting Myths about Indian Patent System

In which patent office, you should file patent applications in India?

How to get Patent Protection in India?

What are The Crucial Elements of Patent Prosecution in India?