Can You Patent an Idea?

The simple answer is no, you cannot patent an idea for an invention. The invention itself has to be produced or a patent application containing the invention must be filed with the U.S. Patent and Trademark Office (USPTO).

While all inventions start with an idea, not every idea can be called an invention. The difference between ideas and inventions is foundational to patent law and knowing these differences can help you understand what a patent is, how to get a patent, and when to file a patent.

What is a utility patent?

There are many different kinds of patents, but when most people talk about patents, they usually mean utility patents. Utility patents protect four kinds of intellectual property:

1. A process. A process is any combination of steps or methods.
2. A machine. A machine is any combination of parts.
3. A manufacture. A manufacture is a combination of materials to make a new and useful improvement.
4. A new composition of matter. A new composition of matter could be a chemically new substance, like a drug or other formula.

In reality, many inventions are combinations of these categories. For example, a new telecommunication system may combine processes and machines. Or, a new kind of concrete may combine new combinations of existing materials as well as completely new chemicals.

One way to tell if your idea is an invention is if you can describe it in the terms utility patents protect. If you cannot tell if it is a process, a machine or some combination of the two, your invention may just be an idea, which you cannot patent.

Other common patents are design patents and plant patents. 

• A design patent provides legal protection for the way something looks. It ensures the visual elements of a product, like a piece of jewelry or electronic item, aren’t exactly identical to an existing product in terms of shape, texture, and "surface ornaments."
• A plant patent, as you can probably guess from the name, protects new varieties of asexually reproducing plants.

What you can patent and what you cannot patent

Even if your new invention fits under the law, not everything can be patented. Determining which kinds of inventions are protectable will further help to determine if your idea is an invention.

Inventions cannot be too abstract

As per United States patent statute (U.S.C 35), you can't file a patent application for an abstract invention. For example, if your invention is not tied to any particular process or application, then it is not a patentable invention. It actually has to help someone make a decision, move a machine in the real world, or otherwise make something useful happen. For instance, a mathematical formula on its own might be difficult to patent. However, if the inventor can show how it actually helps another process or how the learning outcomes significantly improve as a result of the formula, it may become easier to patent.  

Inventions cannot be natural discoveries

If you are fishing in the backwoods and pull a mysterious new fish from the pond then you cannot patent it—even if you are the first one to ever find it. You have to do more than discover something to get patent protection. You have to purify it, modify it, or incorporate it as part of a bigger invention.

Inventions must be defined

Imagine that you discover a plant extract that is a potent antioxidant. In low concentrations it treats acne and, you speculate, that in high concentrations it could reverse heart disease or cure cancer. While your acne treatment is likely an invention, you almost certainly need to do more work to formulate the antioxidant to treat heart disease and cure cancer—you need to define the scope and not overstep your great invention.

Patent requirements

In addition to what can and cannot be patented, patents have to be novel and non-obvious. For inventors, that means that the invention has to be completely new.

Novelty means that no one has ever made the same invention before—your invention is totally new and has never been described in a publication or in a patent application. No one has ever made the exact same thing.

A non-obvious invention is one that wouldn't be apparent to others. The mere idea to combine two known things is not something you can patent—there must be something new about how the things are combined or why the inventor selected the things. It is the selection of the things or the way that the things are combined that elevates the obvious idea to a non-obvious invention.

Another requirement for patentability is usefulness. Many inventors meet this requirement by describing how their invention immediately helps someone do or achieve something in their patent application. The USPTO provides detailed guidelines on how a patent examiner will determine an invention's utility compliance.

The patent search for prior art

You can determine novelty and non-obviousness by searching for other existing patents, issued patent applications or publications related to your invention, collectively called patent art. During your market research, if you find one patent that includes a detailed description of all the steps of the process you invented then it is no longer novel. Likewise, if you find a journal article outlining over 75% of the parts of your new machine and a published patent application that describes the other 25% of components, then your invention is obvious because it’s been done before. 

Online resources make patent searching easier than ever. If someone has already invented your invention, it is better to find out now rather than after your second round of investment.

Ideas are hard to search for. If you have not sufficiently focused your idea into an invention, then it can be too broad. For example, it’s hard to search for a machine unless you know the exact parts that it is made from. Likewise, it is hard to search for a process unless you know all its steps.

If you have a hard time starting your patent search or if you are not getting any meaningful results, then your idea may not be an invention yet.

Even if you do find prior art, you have a few options:

• Fight it. In your patent application, you can argue that the prior art does not apply because it is from a different field or it is not exactly the same as your invention. 
• Dodge it. You can narrow the scope of your invention and focus more on what makes your invention different. 
• Accept it. Novelty is supposed to be difficult. Even the best inventors have ideas that someone has already published or has the patent rights to. There are always more inventions to invent and sometimes fighting prior art just is not worth it. 

Patents are a way to protect valuable intellectual property for 15–20 years, establish business credibility, compete at high levels, and make a financial profit. They can also save you from complicated and expensive legal disputes over intellectual property infringement. If you feel you have a great idea for an invention, here's how to protect it and turn it into a lucrative financial opportunity.

Develop the idea

A new idea isn't sufficient to secure a patent. You need to dig deeper and hash out the idea so you can write a detailed description that explains the components or materials used in the invention and how it works. You also need to provide specific examples of intended use.

Another way to refine an idea is by creating accurate professional drawings (they are a requirement in the patent application process) or developing a prototype. This will help you bring your idea to life and see if it really serves a functional purpose.

You can also consult a patent attorney to develop your idea. Patent attorneys have a science or engineering background and can provide technical guidance on how your invention can be differentiated from other patents. Use these 10 questions to find the right patent attorney for your idea.

Keep your idea confidential

In the world of patent law, if you disclose your invention in the public domain—for instance, through a trade show or conference—you may lose the right to claim rights to that invention. Therefore, confidentiality agreements or non-disclosure agreements are absolutely essential for inventors in the early stages of an invention or patent process. Keeping trade secrets and other intellectual property information close to the chest is the best way to ensure your brilliant idea stays yours.

The limitation of a confidentiality agreement is that it's only going to safeguard your idea against those who have signed the agreement. Also, if the agreement is broken, you'll have to file a breach of contract claim to obtain legal remedies.

Conduct a patent search

A patent search is a crucial part of the patent filing process. It will give you a clear answer on whether your idea is truly novel and non-obvious. It also helps you establish the proper scope of your patent so you don't step on or "infringe" someone else's patent. A thoroughly conducted patent search via USPTO or a patent search service can help you write a stronger patent application that has less chance of rejection.

Prepare and file a patent application

The patent filing process, aka "patent prosecution,” is time-consuming and complicated. The application is a multi-step process that requires you to submit detailed descriptions, claims of how your invention is different, and technical drawings and photos of the invention.

You can file a utility patent application directly with the USPTO. However, understand that there is approximately a 40% rejection rate for patent applications. A patent attorney can serve as an inventor's trusted partner through the entire patent process to help increase the chances of success. They can also advise you on how to respond to any "office action" or legal issues with your patent application.

If you need more time to iron out or test your invention, you also have the option to file for a provisional patent application, which will hold your "spot" in the patent application process. You can do this on your own or use a provisional patent service like LegalZoom.

What is a provisional patent application and does it protect my idea?

A provisional patent application is a legal document, issued by the U.S. Patent Office, that preserves your future patent rights before a formal patent application process is lodged. Provisional patent applications are an inexpensive way to establish an early filing date for ideas or inventions (which is important in proving who was the first), and they give inventors a 12-month period to test, refine, or prototype an invention. A provisional patent application allows inventors to use a "patent pending" label on their idea or invention.

However, a provisional patent application is not reviewed by the patent examiner, and neither is it a formal patent. Therefore, you can't sue another party for patent infringement based on a provisional patent filing with the U.S. Patent and Trademark Office. Provisional patent applications must be followed up with a formal patent application within a 12-month period. 

FAQs

Can I patent an idea without a prototype?

U.S. patent laws don't legally require you to create a prototype. If your idea meets the criteria for invention, you can patent the invention (not just the idea) without a prototype. But, you need to know enough about the invention so it can be described to such depth in your patent application that another expert can recreate it. A patent attorney can help you describe your invention using the right terminology and in a manner that satisfies this requirement.

What happens if someone else patents my idea?

It can certainly be tough to discover that someone else has patented your idea. This is where assistance from a law firm or a licensed and registered patent attorney can be the most valuable. They can help you make your case and advise you on whether you stand a chance to get exclusive rights to that invention.

How much does it cost to patent an idea?

The USPTO’s basic filing fee for a utility patent ranges from $64–$320—but there are additional costs to consider. For instance, there's a utility examination fee of $800 and a patent search fee of $700. You may also be charged an application size fee if your application exceeds 100 sheets. 

There are also other factors like patent complexity and number of claims. The more claims your patent includes, the more expensive it will be. 

If you enlist the services of a patent attorney throughout the entire patent filing process, your costs can increase by another $8,000–$10,000, if not more.

How long does it take to patent an idea?

The USPTO says it takes them slightly over two years to process a patent application. However, you can see if your utility patent qualifies for a prioritized examination under the TrackOne program. This may speed up the timeline on securing a patent. 

What cannot be patented?

Abstract ideas, natural discoveries (e.g., you spot an aquatic animal), nature's laws, physical phenomena, and theoretical plans aren't patentable.

Joe Runge, Esq. contributed to this article.