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Patent 101: Idea or Invention?

on Wednesday, 21 May 2014 in Technology & Intellectual Property Update: Arianna C. Goldstein, Editor

Many people believe that you can patent an idea. However, this is not necessarily true. An idea is just a first step in the process of getting to something that can potentially be protected by a patent, that something being an invention. For example, someone has an idea when they make an observation that it would be nice to have some mechanism for providing a certain functionality, whereas someone has an invention if they are able to specifically describe in detail how that functionality could be provided. So basically, in order to get from idea to invention, details and specifics are required, such that the idea is fleshed out or expanded into something that is more tangible and less abstract.

The importance of getting to the invention stage is clear when the requirements for obtaining patent protection are examined. For example, a patent application must explain to others how to make and use the invention in sufficient detail so that those in the technology area of the invention could replicate the invention simply by reading the application. Although the application does not need to provide an exact blueprint, it must provide enough information to allow those within the technology area to make and use the invention without undue trial and error. So before you apply for a patent, it is important to make sure that you have fleshed out your idea with enough details that it has become an invention. You do not need to have a physical prototype of the invention before you apply for a patent, however, your invention must be sufficiently described on paper so that it works for its intended purpose and so that others in the technology area can replicate it just by reading your application.

A number of inventors will often look to show their invention to others, such as prospective licensees, potential investors, manufacturers and/or vendors, in an effort to derive financial gain from or obtain funding for their invention. Before doing so, inventors will want to make sure they’ve taken steps to protect themselves from having their invention stolen. One way to do this is through confidentiality agreements (or non-disclosure agreements) in which the party signing the confidentiality agreement agrees not to disclose the inventor’s information to third parties. However, it is often difficult to get some parties, such as investors or venture capital firms to enter into a confidentiality agreement because they see so many inventions, they do not want to subject themselves to potential breach of contract liability based on confidentiality agreements. Therefore, prior to approaching potential investors, a good way to protect your invention is to file some type of patent application (e.g., provisional or non-provisional) with the Patent Office which covers the invention. Another advantage to this is that it may give you more leverage in negotiations with the venture capitalists, since they often give preference to inventions which are patent pending, a status which can only be achieved through filing a patent application. However, as mentioned above, in order to file the application, you will have to be at the invention stage of your innovation process rather than merely at the idea stage. Thus, it is important to have a concrete strategy for getting from idea to invention.

One way to help move from the idea stage to the invention stage is to go online and look at issued patents in the general technology area of your invention to get an idea of the level of detail/description which may be necessary. Also, during the research and development (R&D) stage, it may be a good idea to document which configurations, tests and/or experiments have not been successful, so as to make future R&D sessions more productive by avoiding duplicative efforts. Either way, it is important to not get discouraged and to remember that all inventions begin with an idea.

Grayson J. Derrick

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