Determining whether or not your idea (or portions of your idea) has already been made public by another inventor is a critical first step in the process of obtaining a patent.
What is a patent?
A patent is the legal right, provided by the United States government, to exclude others from making, using, selling, or offering to sell your invention for a limited amount of time.
How do you get a patent?
Patents in the United States are granted by the United States Patent and Trademark Office (the “USPTO”). The first formal step in obtaining a patent is to file a patent application with the USPTO.
What can you apply for in a patent application?
Under the federal patent laws, the USPTO will only consider patent applications if the invention sought to be patented is a new and useful machine, manufacture, process, or composition of matter. Each of these categories is further defined in federal case law. Typically, most inventions conceived by individual inventors fit into one of those categories.
A Patent Examiner is a person at the USPTO who reviews filed patent applications. A Patent Examiner also inspects the application to ensure it meets dozens of other requirements mandated by federal law. For example, a Patent Examiner will check the invention disclosed in the application against existing granted patents, filed patent applications, or any other publicly known information in any form. If Patent Examiners find that the invention overlaps with any reference in this seemingly limitless base of information (known as prior art), they will reject the patent application.
How different does my patent application need to be to get around prior art?
Patent Examiners don’t even need to locate a single reference which matches your invention to issue a rejection. Rather, they can select certain components from multiple patents, patent applications, and other publicly known things, and combine them. If this combination resembles your invention, the Patent Examiner will deny part or all of the application.
Is it expensive to get a patent?
The preparation and filing a patent application can, at times, be prohibitively expensive. An ill-prepared applicant can spend hundreds of dollars in filing fees, only to file an application for an invention which partially, or even completely, overlaps with the prior art. Being unaware of your application’s vulnerabilities can cost the inventor time and money. Therefore, an inventor should have some idea of whether his invention is known in the prior art before contemplating the filing of a patent application.
How can I determine if my idea has already been patented?
The best means of determining where your invention stands in comparison to the prior art is to conduct a patent search prior to drafting a patent application. A thorough search of existing patents, patent applications, and other public information related to an invention will give the inventor a better idea whether his invention is susceptible to rejection.
Unlike other scavenger hunts, a patent search may be the one search in which you don’t want to find what you’re looking for. The more references identified in a patent search, the greater the chance that your invention is already known, and the greater the likelihood that a Patent Examiner will reject your patent application.
Patent searches will also help the inventor (and his patent attorney) to anticipate future pitfalls in the application process. Knowing what prior art exists provides the inventor with an idea of what rejections a Patent Examiner might assert after examining a patent application.
How will I know if my patent is worth pursuing?
After conducting a patent search, collect and review all the located references. If only a few patents, patent applications, and other publicly known references match the novel features of your invention, your invention may be suitable for a formal patent application. Be advised, though, that no patent search is completely exhaustive, and many applicable references will exist despite your best search efforts.
Again, Patent Examiners will conduct their own prior art searches and identify references you may not be aware of. Evaluating your options with a patent attorney and ascertaining the chances of a Patent Examiner successfully granting your application—called a patentability opinion—is the next logical step before filing with the USPTO. Though not required, obtaining a patentability opinion based on an extensive patent search can make the decision on whether to pursue an application substantially easier.
