Is My Idea Patentable? Should I File for a Patent?

By Benjamin Blumenthal Tuesday, March 31, 2015

should I patent my ideaMany of us have ideas for new products or services, but the question still has to be asked: "Why file a patent application?"

More than half of patent applications filed with the US Patent and Trademark Office (USPTO) are rejected.  Of those that do get through, maybe 10% represent money-making inventions, while the rest oftentimes are remainders of ideas that did not pan out, get funded, or got left behind for something else. 

The first questions a person should ask him/herself after a Eureka moment are:

This post will help answer these questions.

Is my idea patentable?

 An inventor needs to consider three primary factors:

  1. Improvement – Does my invention make a real improvement?  Patents demand an improvement over that which is already known in the market. If you apply for a patent on a car with no demonstrable improvement, the patent will be declined.
  2. Non-Obvious – Is my invention non-obvious? Does my invention already exist? This is not an easy question to answer, as the exact invention may or may not exist. Google Patents and the USPTO website are good places for inventors to start looking for their inventions. Oftentimes, one has to be creative in looking for “prior art” (references to the idea in the public domain). 

    Keep in mind that terminology may change. You may see a "diagnostic device," but others who have filed before you may have called it a "detector." Also, for patent purposes, the lack of existence of your specific invention does not guarantee patentability, as an examiner may combine several pieces of art to arrive at your functional device and thus reject the claims of your application on the basis that your idea is an obvious outgrowth of existing knowledge. For example, if today you tried to patent a solar panel specifically designed to charge a computer, the examiner might claim that computer batteries are known and solar panels are known, thus the combination of both is obvious and not patentable. Prior art searches are oftne performed by experts in Intellectual Property law.
  3. Enablement – One can file a prophetic patent application on ideas not yet created, but the embodiment must be fully described and the science must make sense. In other words, one must be able to actually make the product work. You cannot patent an idea, but you can patent a process or system.

How do I pick the right patent writer?

If you decide to file a patent application to cover a new invention, then your next big decision is with whom to file. The two most important traits for any patent attorney or patent agent are honesty and knowledge within the field

The first quality, honesty, may seem obvious, but it is critical. Patent work and its associated costs are fungible. You may need to file in multiple jurisdictions and/or you may need more or fewer claims. You want an honest patent preparer so you are confident that whatever expenses you incur are real expenses. You do not want to be filing unnecessarily or filing bloated applications simply to help pay for the staff of the office you are using. You also want someone who can tell you that prior art exists and/or if there are significant risks in getting the patent you are sure that you deserve.

The second quality, knowledge in the field, is one of the greatest challenges in finding a patent preparer who understands the subject matter almost as well as the inventor him/herself. You have been spending months, maybe even years, on this topic and you know the literature inside and out. You may also be the only expert on your particular invention anywhere in the world. While one may not expect a patent attorney or to be such an expert, that person must be well-versed enough in your invention to allow him/her to understand the invention, compare it to the art, write cogent claims and complete the full application.

If the patent preparer does not fully understand the invention, then he/she may simply write a somewhat vacuous application that does not fully develop the concepts and embodiment of the invention. If a person does not understand a client’s invention, then he/she should suggest someone else to write the application.

Is it worth the time and cost of getting a patent?

The costs of filing a patent can be considerable, and it typically takes about 30 days to complete the patent process.

To draft the patent application, file it and handle the prosecution (responding to the examiners' communications) typically costs between $15,000 and $25,000. If you apply for coverage beyond the United States, say through a Patent Cooperation Treaty (PCT) filing, the costs can increase by tens of thousands of dollars more.

So, why file? Because, once issued, the protection offered by a patent provides a meaningful entry barrier for would-be competitors. Patents can also assist in raising capital for a company, as they are viewed as highly desirable by investment firms and angel investors, adding a level of security and lowering the risks associated with competition. Additionally, having patents in place also provides reasonable protection for discussions with possible strategic partners. As such, the costs are often justified.

Is there a low-cost way of getting high-quality patents done?

Yes. A company called PatentTank provides low-cost, high-quality patent writing.

  • Costs
    • Traditionally, patents can cost $15,000 to $25,000
    • PatentTank offers professional patent writing services for 60%-80% less--$5,500 per patent instead of $15,000 - $25,000
    • All patents are written by senior patent writers with strong track records
    • This drives down legal costs and, with the same budget, allows more intellectual property to be filed
  • Timing
    • PatentTank can complete the patent within 10 days
    • This is 60% faster than the traditional thirty day process
    • A rush service is available for a 3-day turn-around, if necessary.
  • Areas of Practices 
    • Internet/High-Tech
    • Biotechnology
    • Aerospace/Defense
    • Oil/Gas Technologies
    • Alternative Energy Solutions
    • More...
  • PatentTank offers
    • Provisional patents, full United States patent applications, European Patents and PCTs
    • A team that has written over 100 patents over the last 15 years
    • Full end-to-end patent writing service
  • Clients Include businesses and inventors looking to reduce costs associated with patent writing; VCs and Private Equity firms looking to reduce patent writing costs for portfolio companies; law firms currently offering patent services looking to reduce costs (all Intellectual Property remains in the U.S.); law firms not currently offering patent services looking to create an Intellectual Property department; universities looking for a cost-effective way to draft and file many patents over a long term.
  • Samples of work:

*Disclaimer*: Harvard Business Services, Inc. is neither a law firm nor an accounting firm and, even in cases where the author is an attorney, or a tax professional, nothing in this article constitutes legal or tax advice. This article provides general commentary on, and analysis of, the subject addressed. We strongly advise that you consult an attorney or tax professional to receive legal or tax guidance tailored to your specific circumstances. Any action taken or not taken based on this article is at your own risk. If an article cites or provides a link to third-party sources or websites, Harvard Business Services, Inc. is not responsible for and makes no representations regarding such source’s content or accuracy. Opinions expressed in this article do not necessarily reflect those of Harvard Business Services, Inc.

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