How to patent the idea?
That is something I am often asked when telling people that I used to work as a patent examiner at the Swedish Patent Office, and how it felt like working in the forefront of technology since every day I was dealing with the latest and most challenging technical innovations where inventors wanted to get a patent.
There is really no short answer to this simple question, and despite how often one hears on the television or radio, there is no clear cut effective way to protect your idea with any type of intellectual property right protection such as a patent.
In this blog, I will try to explain if ideas can qualify to become a patent and what you could do before applying for a patent.
What are the requirements to get a patent?
Before asking yourself how to patent the idea maybe you should ask yourself if the idea includes some type of innovation. According to Wikipedia innovation is defined as a "new idea, creative thoughts, new imaginations in the form of device or method". Once you have come to the conclusion that your idea includes innovation, you may start treating your idea as an invention, but now you need to make sure that your invention fulfills the following 4 criteria necessary before considering applying for a patent application:
● The invention has to solve a technical problem. It doesn´t matter whether the proposed solution is better or worse in the meaning of an optimal solution,
● The proposed invention has to be "new” compared to granted patents, published applications, papers, textbooks, tradeshow, etc.
● If "new” then the proposed solution must as well differ significantly from known solutions. This is called "inventive step” referring to the possibility for a person skilled in the art to combine one or two known solutions and come up with the same claimed invention. This specific topic is one of the most complex parts when discussing if a solution is patentable or not. I will not go into details here, but if you want to discuss this, please contact me, your patent agent, or a patent lawyer,
● The last criterion is that every time one uses the solution proposed in the invention, identical results should be obtained. Of course, "Perpetuum mobile – Perpetual motion” that describes hypothetical machines to produce energy indefinitely are not accepted since they are not Industrially applicable (energy law)
Let me summarize the 4 criteria’s for getting a patent on an invention:
● A solution to a technical problem
● The invention has to be all new
● The inventive step has to be fulfilled – differ significantly from known technology
● Industrially applicable – technical effect and reproducible
What can you do before talking to your patent lawyer?
It is very good that you do as much as you can before approaching a patent lawyer to help you with your application. Start by collecting all the necessary information you can to help you understand what is unique with your idea and who are the active companies in the same space or field. It is also important that you are clear with why you would like to protect your idea with a patent (if this is indeed what you want), is it to have exclusivity on your invention and make sure that no one can use your invention without paying you royalties? Or if you can’t fulfill the criteria for patenting alternatively you really don’t want to file a patent, but maybe you just need to make sure you have the freedom to operate (not infringing others intellectual property rights).
Regardless of your aim and approach, I would still recommend you investigate similar ideas by analyzing published patent documents.
Collect patent information
Before performing your own patent search, make sure that you are using the most appropriate patent source. Read my previous blog on how different patent sources can differ and affect the outcome.
Follow these 4 steps to quickly identify relevant published patents regardless of their legal status whether granted patent, pending patent and patents that are not active anymore.
1. Capture and Identify relevant patents
● Use Google patents or Espacenet or other search tools available to you to execute your own patent search
● Search for known competitors
● If the competitors are active in multiple fields combine your search with relevant words that define the idea or invention,
● Once you have found well-published patents, look further for cited patent
2. Identify relevant patent classification for your search
● As a first step you need to find relevant CPC classification that covers your idea or invention, check out the patents you captured in step 1 for relevant classes
● If you don’t capture relevant patents use IPC classification, check out the patents you captured in step 1 for patent classification
● Usually, a patent is assigned multiple classifications, select the most appropriate classes
3. Highlight how your idea/invention differs from existing prior art
● Analyze identified relevant patents by reading the description to understand what problem they are solving and how
● If you have found a very relevant patent (very similar to your solution), check if it is owned by a company you know, if not, redo step one by searching on that company
● Highlight relevant parts for future purposes
● Usually, by reading other patent applications you stumble on new words or angles that may require you to redo step 1
4. Check out the patent legal status
● What is also important when you have identified relevant patents is that you try to understand the legal status of these patents such as patent pending, patent active or patent dead
a) Many patent databases offer digital patent legal services but always and I mean always talk to your patent agent or patent lawyer to ensure you have the correct status. It may be required to call the patent office to get the latest status of the patent
b) This is only necessary for the patent applications that are very similar to your own invention
● Try to understand important markets from a patent perspective
a) Most probably your competitors have identified their important markets from a revenue perspective but as well their competitor
b) Try to understand if it is aligned with your view on it and if you have a different strategy
Depending on the outcome of the exercise of collecting the patent information, I believe you should by now have a good understanding and insight to answer if your idea can be protected by using “intellectual property right protection such as a patent. As you may see “How to patent the idea” is not something one can answer without having all the necessary information in front of them.
Are you also faced with a similar challenge reach out to us and one of our IP experts will support you with best practice? Book a meeting with our patent experts.
One last thing, did you know that three of IAMIPs IP expert team are formers patent examiners?
My name is Dimitris Giannoccaro, I am the CEO and co-founder of IAMIP and I am supporting technology companies to unleash the power in patents.