Is my idea patentable?

Assuming you have specific implementations of how your idea would actually work, then your idea may be patentable if it meets two conditions:

  1. eligible subject matter; and
  2. novelty.

Design patent or utility patent?

If the aesthetic appearance of your concept is what you want to protect, then you want to file a design patent application. Novelty is simpler to determine with design patents.  A patentable design requires a unique ornamental appearance, such as a 3-dimensional shape or a 2-dimensional artwork.

If you want to protect how your concept or invention works (e.g., structures or processes), then a utility patent application would be appropriate. You can seek utility patent protection by filing a provisional or non-provisional application.

Eligible subject matter for utility patent protection generally excludes inventions that consist of laws of nature, natural principles, natural phenomena and natural products with a few exceptions.

How is your invention new and different?

As to novelty, the issue boils down to whether your concept is sufficiently unique over what has been done in the past, i.e., the prior art.  Patentability searches can help assess the novelty of your invention by locating similar prior art patents and publications.  Such novelty searches, however, cannot guarantee success since it’s difficult to predict what additional prior art the patent examiner may find. It is also challenging to predict how the examiner will interpret and apply the prior art references to reject your patent claims.

Basically, patentability search results can provide a definitive “not patentable” conclusion but they cannot provide a definitive “patentable” determination.

Due to the high allowance rate of design patent applications, we usually recommend patentability searches for those considering utility patents.

Once we’re able to identify the potentially unique features, the question then becomes whether it would be worthwhile to patent a product or process that requires some combination of those features. In other words, are those features significant enough to warrant the cost and time of seeking a patent?

How to search patents yourself

If you’re willing to try searching patents yourself, try Google Patents and freepatentsonline.com.  Since these searches on these sites are based on keywords, use different synonyms and different combinations of terms to search for relevant prior art.

Is a patent application worth the investment?

If you’re able to determine that your invention is patentable (or least not unpatentable), then the next question becomes whether it would be worthwhile to spend the money and time to pursue a patent. A design patent application will likely get granted with lesser costs and in a shorter amount of time, but will offer less protection than that of a utility patent.

The amount of money and time required for pursuing a utility patent can be daunting. A worthwhile question to ask is what your options might look like if you don’t apply for a patent? How might the competitive landscape change with or without you being patent-pending?

Perhaps, you cannot yet afford a non-provisional application. Then file a provisional application and buy some time.

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Vic Lin

Vic Lin

Startup Patent Attorney | IP Lead Partner at Innovation Capital Law Group
If you are a startup or small business, we want to help. Our mission is to equip entrepreneurs with solid IP rights that facilitate funding, growth and sales. Let's get to work! Direct: 949.223.9623 | Email: vlin@icaplaw.com
Vic Lin

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