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Inventors Handbook

B. Preliminary Patent Matters

I. “Idea” vs. “Invention”

Frequently, potential clients contact us to see if we can help them protect an idea. Alternatively, potential clients approach us wishing to sue a person or company whom they feel has stolen an idea.
It is important to distinguish between ideas; concepts that cannot be the subject of intellectual property rights, and inventions; specific machines, materials or processes that can be patented and protected.

Ideas that merely address a problem to be solved, or propose a hypothetical machine or method for solving a problem without specifically discussing how the machine or method works are considered abstract ideas by the Patent Office and may not be granted patent rights.

By contrast, when an inventor takes an idea and reduces it to practice by establishing the best mode of carrying out the invention, and can describe to a person of similar skill in the Art to which the invention pertains, how the invention is made and used, patent rights may be granted on such an invention.

Therefore, before attempting to pursue patent rights, it is important to finish the inventive process, making sure that the subject matter of a potential patent application consists of more than mere abstractions.

II. “Publishing” an Idea/Invention

Since mere ideas cannot be protected with patent rights, an idea cannot be owned, and may be exploited by others. Therefore, when an inventor is pursuing an invention based on an idea, it is best not to reveal the idea to others who might pursue a similar competing invention.

Although disclosing an idea doesn’t impact the right to patent an invention based on that idea, there are rules that come into play, once an invention is created.

In the U.S., inventions are not patentable if they have been in public use or on sale more than one year before an application is filed. By contrast, in many foreign jurisdictions, an absolute novelty rule is observed; if an invention is published at all before a patent application is filed, no patent may issue on that invention. For these reasons, it is usually best not to publish, publicly use, or sell an invention before filing a patent application.

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