By Amy Carst, 
Ideas and inventions can change the world, but not all can be patented. If you have invented something, you’ve no doubt heard of patents, or even encouraged to apply. But will your idea qualify? An experienced patent attorney is your best resource if you want to obtain patent protection for your invention, but the information below can help you get started. Read on to learn what types of inventions qualify for patent protection and which ones might be better off remaining in the inventor’s head.
Should you patent or copyright?
Certain ideas and inventions cannot be patented because of their nature. For example, you cannot patent an abstract idea, such as math, or a law of nature, such as lightning. You also cannot patent artistic works, including literature, dramatic works, and music. Artistic works are protected by copyright.
Useful and novel
Once you’ve determined that your idea doesn’t belong to any of the above categories, you must consider whether it is useful. In order to be patented, an invention must be useful and operative. It must also be new. If someone has already used, patented, or even described the invention before you did, obtaining a patent is unlikely. Furthermore, your invention must not be too similar to an existing invention. If similar, it must be a measurable improvement upon the existing product. You should also consider how your invention will be received by the general public. Is it offensive or intended for illegal purposes? If so, you may need to rethink your approach.
The United States Patent and Trademark Office (USPTO) outlines these steps to research your potential patent:
- Come up with potential search terms for your invention involving its purpose, composition, and use.
- Search those terms on the USPTO's Site Search box.
- Review the Cooperative Patent Classification (CPC) results from your search.
- Retrieve the relevant patent documents to the CPC classification results.
- Search patent publications for similar inventions to your own.
- Study other published patents within your CPC classification in the AppFT database.
- Look for additional patents by broadening your search terms.
Familiarizing yourself with these steps and ensuring that your idea is distinct enough from existing patents will save you time and money should you go forward with the process.
Understanding public disclosure
In order to obtain patent protection on an invention, you must be the inventor. Unless the inventor is dead or otherwise incapacitated, only the inventor can apply for a patent. In addition, it may be a good idea to keep mum about your invention if there is any chance you’ll want to procure a patent in the future; there can be no public disclosure prior to your U.S. patent application. The patenting process can be highly complex. Fortunately, there are many skilled patent attorneys across the country that can help you navigate the process and bring your invention to the world.
Patent law and Congress
The U.S. Constitution gives Congress the power to enact laws surrounding patents: "Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
In 1790, the first patent law was enacted. The laws remained relatively unchanged until 1952, when they underwent a general revision. Then, in 1999, the laws were further revised under the American Inventors Protection Act of 1999 (AIPA).
According to the statute, any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent,” subject to the law’s conditions and requirements.
And as stated earlier, patents cannot be obtained based solely on a suggestion or idea. The patent is granted to the actual machine or product, not the idea surrounding it. As such, a complete description of the finished product is required at the time the patent is sought.
Contact a patent attorney today
According to Ben Pleune, a Charlotte-based attorney with Alston & Bird, a patent attorney can be of immense benefit.
“While the scope of allowable subject matter for a patent is quite broad—literally anything that is new, useful and non-obvious—there are steps that a patent attorney may recommend, before filing a patent, to help ensure that the patent application is ultimately allowed by the patent office,” Pleune says. “In particular, a patentability search is often performed to determine whether any similar inventions have previously been filed with the patent office. This allows the inventor to better understand the patent landscape and tailor the scope of the application to the truly innovative aspects of the invention.”
If you are considering getting your invention patented, it’s in your best interest to first consult with an experienced patent attorney. The process can be expensive and time consuming. In certain cases, a patent is essential, but you don't want to waste your time and money only to determine you don't need, or qualify for, a patent. An attorney can help you determine this before you make any type of investment.
