Do you have an itching idea, invention, or discovery that you feel could be patent-worthy but are not quite sure where to start? Well, look no further; this article got you covered 😉.
The question of whether you can patent an idea lies on these four points namely Novelty, Inventive step, industrial application, and non-inclusion from the excluded subject matters.
Diagram showing the air purification headphones by Dyson. Image: Dyson / IPO
Perhaps the most important of the four- is ‘Novelty.’ This is exactly what it sounds like, the idea must be new. Interestingly, novelty is judged not on the product but on the claim. When you apply for a patent, the office will search primarily through patent databases to check if that claim already exists. However, it doesn’t always have to be patent databases; the novelty of your invention can be found to be lacking based on any kind of public disclosure that’s ever been made anywhere in the world at any time in history. Simply put, if your idea or patent claim is in the public domain, it will not pass the novelty test.
Although, patent examiners only have a day to search, so they focus on the patent database because that’s easily classified for word searching or picture searching.
2. Inventive Step
So inventive step follows on from novelty. Assuming that nobody has ever done exactly what you’re doing before, it’s then the job of the patent examiner at the patent office to have a look at what has been done before and perhaps what’s closest to what’s been done before. And then they put themselves in the mindset of somebody who works in that field, and they ask themselves,
‘well, based on what we already know exists, is there an invention in making that final step from what already exists to this new thing that you’re claiming to have invented?’
Now, this is a bit of a subjective one. And it’s not as easy to judge, but it’s a question of whether the change that you’re making to what already exists is simply a routine modification or something with a little bit of creative spark in it. So again, it will depend on the patent examiner, the day of the week and how close it is to lunchtime when they’re making the decision, and all that sort of thing.
However, if they come down against you, you have the chance to argue by taking the law and applying it and getting the right answer eventually.
The more of the stuff that goes in your application, the more likely you are to get a patent granted at the other end of it. And it may be that by the time you’ve got all those details sorted and put them into a patent application, you’ve actually got three different inventions!
3. Industrial Application
This refers to something that can be made and used. Industrial application is a requirement, which is there just to filter out things that break the laws of physics like perpetual motion machines and time travel machines and things that can’t be made.
4. Not being in one of the excluded categories
The exclusions for patentability are;
A scientific theory of mathematical methods, inventions contrary to public policy or morality, computer programs, mental processes, and treatment methods by therapy /surgery.
There is a possibility that your product concept/idea may have more than one patentable feature or invention. Ensure not to put all these features together in the same claim because that’s going to waste. You want as little information in the definition to enhance your monopoly as possible. Because you want the broadest monopolies that you can get away with. So, if you have a helmet with very clever housing and a unique fit around the head, don’t claim all of that in one go. Because that means that if somebody goes away and just does one of the three, they’re not going to infringe on your patent, they can get away with it. So, choose one, pay the patent office to do some extra searching, decide which ones might get patented and if necessarily split the application into three applications and get a patent for all three.
At an early stage of development, you don’t necessarily know what you’ve invented or how many things you’ve invented. It’s just a question of working out what it is you will apply for. And then seeing what the patent office comes back with.
An attorney can conduct a prior art search beforehand. The result will give you a good idea of what prior art exists. And will help you better analyze the likelihood of your patent being granted? In my experience, it costs about 500 pounds on average to get a patent attorney to run a prior patent search. I should add that it doesn’t come with guarantees because pattern searching is never comprehensive, as the search field is effectively infinite. Also, there is an element of human judgment that a patent examiner might legitimately exercise differently from the patent attorney. So, there’s never any guarantee with these things.
According to some patent attorneys, filing a patent application without professional assistance limits your chances to only 5%. Meaning that only 5% of non-professionally prepared patent applications are granted.
He stated that 30% is the default chance of success when applying without prior search even when done by an attorney. However, with a prior art search beforehand, the chance of success increases to 60% -70%.
So, conducting a prior patent search can potentially save you money in the long run.
Here are some links you can check to carry out a patent search.