You or your team had a eureka moment and you invented something unique. You have a hunch that this could be the next big thing. You don’t want to let the opportunity slip into someone else’s hand.
Should you protect your idea by filing a patent?
What is a patent?
A patent is a legal right granted by a particular government. If you hold a patent, no one can use your invention to make, sell, or market a product without your consent.
Patents are country specific. For example, if you have a patent in the U.S. and not in India, you can’t stop someone from using (and profiting from) your patented invention in India. So you’ll have to file for a patent in each country where you want to protect your invention.
Is it cost-prohibitive?
Filing a patent is costly—it can put additional stress on your budget. A patent may cost anywhere between $10k and $25k depending on the level of complexity of your invention. To top it off, only 0.2 to 5 percent patents become commercially viable—meaning even if you make the investment in protecting your idea, chances are actually pretty low that your product will ever launch.
So it’s a big decision. If you have a novel invention that you think has great potential to make money and you decide that you want to file, when should you do it? In this article I’ll offer some tips for figuring out:
- When is the right time to file a patent application?
- Is your idea patentable?
- Is your idea actually unique?
When is the right time to file?
Don’t wait too long
After your eureka moment, you should file a provisional patent application as soon as you can. Why? Because filing one is cheap. For startups in the U.S., it will only cost between $65 and $130.
You’ll have a year to work out the details
After you have filed a provisional patent application, you get a period of one year to decide whether to go ahead with filing a properly drafted patent application. During this year, you should be able to figure out whether your idea is unique enough to qualify for a patent according to the law.
But how is a provisional patent application different from a regular patent application, Kanika? Great question! A provisional patent application doesn’t require claims, objective and advantages of an invention, disclosure of prior art, and the like.
For a provisional patent application, you will just need to provide a written description disclosing your invention. Even a description in layman terms would do the job.
Doing this provides you an early priority date, which gives you an edge over others that file for patents with similar ideas though later. The U.S. follows the First to File system, which means that the one who files for a patent protection first has the upper hand.
If you are in a country that follows First to Invent system, you can have a chance to get a patent application granted if you prove that you were the one who came with the invention first. In the U.S., however, you won’t stand a chance. It’s better to be safe than sorry.
How can you find out whether your idea is patentable?
You had your eureka moment, and you have filed a provisional patent application. Now the next task is to hire a patent attorney to file a full-blown patent application. It is technically possible to file without legal representation, but I don’t advise it because, in a court of law, patent proceedings are focused on the specific language used in the application. It pays to have a professional to help draft your application.
However, before you even call an attorney and discuss your idea, I suggest you verify the novelty or uniqueness of your idea. It can save you $2,500 to $3,000 in attorney fees.
In the next section, I’ll explain how you can conduct this search on your own. Before that, let’s first discuss the conditions that your invention must satisfy to receive the seal of grant from a patent office:
1. Patentable subject matter
Every country has a defined list of certain properties or things that are not patentable—they fall under the category of non-patentable subject matter. For example, laws of nature – Newton’s law of motion, or any phenomenon which opposes it, is considered to be a non-patentable subject matter. Make sure your invention doesn’t fall into the non-patentable category.
Your invention should be new. There shouldn’t be any already existing public document disclosing your invention before the date you submitted your patent application (or provisional patent application) to a patent office.
If the idea that you’re hoping to patent has already been publicly shared through an article, research paper, video, podcast, interview, or at a conference, for example, your chances of being granted a patent on it are slim.
This condition means that your invention shouldn’t be obvious to someone in your industry or someone who is a non-expert.
4. Usefulness or industrial application
Your invention should follow this criterion to get a patent protection. It must be useful.
If your idea discloses something that has no practical applications—for example, you file a patent application for a ghost catcher or a time machine—it is not going to receive a patent protection.
5. Mathematical formulae
There are a lot of patent applications for mathematical algorithms that get rejected during the patent examining phase or maybe later in court proceedings.
How to verify that your idea is unique
If your idea meets the five basic conditions, the next step is to verify that your idea is unique—and that no one else has already filed a patent for it. There are multiple free patent databases like Google Patents Search, Espacenet, and WIPO that can help you in the pursuit. Below is a list of patent search databases along with some other free resources:
Google Patents Search
Google patents search is a free patent database. You will find Google Patents easy to use—the process is a lot like any other search on Google. This free guide will help you learn how to how to conduct a patent search on Google Patents.
Espacenet is free patent database maintained by the European Patent Office. It has over 100 million worldwide patents. This guide will help you get accustomed to using Espacenet.
Patentscope by the World Intellectual Property Organization (WIPO) gives anyone access to 65+ millions of patent documents. Here is a user guide for Patentscope.
If you want to restrict your search to the U.S. only, heading over to the USPTO’s free patent database makes sense. Here is a guide that can help you learn how to use the database.
Simply put, if you or team comes up with an inventive idea, you should consider filing a provisional patent application right away. And before seeking help from an attorney, consider running a patent search on your own. It will save you some money for sure.