Can You Get a Patent for an Idea?

If you have an idea for a new invention that no one's thought of before, perhaps the first thing to come to mind is that you should patent your idea. Every wondrous invention that made a mark on the world from Edison's electric light bulb to microwave technology has received a patent, so why not your plans for an earth-changing creation? Before you file your patent application with the U.S. Patent and Trademark Office, here's what you need to know about how ideas are eventually patented.

Patent Subject Matter

Can you get a patent for simply having an idea for an invention? Typically, the answer to is "no." The federal Patent Act (Title 35, U.S.C.) requires that in addition to meeting the criteria of being new, useful and non-obvious, a patent can only protect certain subject matter. Asexually-reproduced plants and designs and utilities are the most common patents issued by the PTO. A utility patent covers a broad array of new inventions. According to law, a "process, machine, manufacture, or composition of matter, or any new and useful improvement thereof" may receive a patent if it meets the specified criteria. The term "process" refers to a "process, act or method," and typically includes an industrial or technical process. For example, Clarence Birdseye received a patent for a method of freezing food so it could be sold to consumers. A computer program is also considered a process, as is a business method, as long as it has specific, identifiable results. What can't receive a patent? Scientific formulas, laws of science and mathematical equations. Additionally, federal law prohibits patenting any type of atomic weaponry.

How the Idea Unfolds

Your ability to patent your idea depends on if you are able to describe how it is made, step-by-step. The PTO examines applications to ensure that the "specification" portion of your application is sufficient enough so that anyone who looks at your patent will know how to make and use your invention. Toys and games can be patented. They meet the criteria of "useful" in that they serve the purpose of entertainment or education. Even Netflix patented its method of renting DVDs to customers, calling it a "method and apparatus for renting items." To get an idea of how thorough a patent must be in describing how an invention is made or how a process is created, an inventor should examine an issued patent.

How to Patent

If you're an inventor, you'll probably want to hire a patent agent or patent attorney to get your application through. Patent applications are not supplied via legal forms provided by the PTO; rather, they must be drafted in a prescribed format. Seek out agents and attorneys with a background in physical sciences who are skilled in the legal language the PTO requires in patent applications. Additionally, your patent agent or patent attorney will know if the "claims" your new invention makes rely on prior art, so that these can be drafted into the application accordingly. For example, if your invention relies on a battery, you cannot claim the battery as part of your discovery other than to state that your invention requires it to function. A patent agent or patent attorney knows how to word this so that your application will not be rejected by the PTO.

The High Cost of Patenting

Compared to registering a copyright or trademark, which cost $35 and $325, respectively, you can expect to spend between $,5000 to $10,000 over the approximately three years that it takes to get your patent through the PTO. The filing fee for a utility patent is $330, which excludes search and examination fees, as well as costs incurred if your initial application is rejected by the PTO and you file an appeal. Roughly 95 percent of initial patent applications are initially rejected because their claims are too close to those used in prior art; your patent agent or attorney must find a way to rewrite the claims to that they pass muster. Additionally, if you receive a utility patent, you must pay the PTO maintenance fees at the 3.5, 7.5 and 11.5 year intervals or else your patent will expire.

Your Rights as Patent Holder

If you're able to turn your idea into a tangible invention and get it patented through the PTO, your invention enjoys 20 years of protection against infringement (14 years, if you receive a design patent). The right conferred to patent holders is far more powerful than that given to holders of copyrights and trademarks; it is called the "right of exclusion." While you hold a patent, you can enjoin other inventors from making, using and selling an invention like yours, even if the other invention was created independently. Consider trade name pharmaceutical drugs that have patent protection of 20 years, during which time no other drug just like them can be introduced to the market. You, too, can corner the consumer market if your invention proves to be a desirable consumer commodity.

References

• Q&A on the Patent Process Costs and Time
• Patent Fee Schedule
• U.S. Patent Act (Title 35, U.S.C.)

Resources

• Netflix Patent
• Patent Process Q&A