Putting the patent before the innovation
“Build it and they will come?”… is exactly what every startup is told not to assume. But what happens if your idea is so super-futuristic that you can’t even build it yet? Can you still get a patent – or are you stuck in IP limbo until your engineering genius becomes reality?
This is exactly the situation that the space elevator inventors find themselves in. The space elevator is a bleeding edge engineering idea: create an inflatable elevator to bring tourists and rockets to the edge of the atmosphere, to more easily launch vehicles into space. The space elevator avoids the need for a cable – yet is still years away from being built.
You might think that this situation would prevent the owners of this idea – a Canadian company called Thoth Technology – from even applying for a patent, let alone receiving it! After all, wouldn’t they need to have a prototype built in order to file a patent application? The answer may surprise you.
WHAT GOES IN YOUR PATENT APPLICATION WHEN YOUR IDEA CAN’T BE BUILT YET?
Thoth is admittedly years away from even building a prototype of its space elevator – yet was still able to get a granted patent for its seemingly a science fiction idea. How can this be?
DO YOU NEED TO BUILD BEFORE FILING YOUR PATENT?
The standard for the information contained in a patent application is whether an ordinary engineer (or team of engineers) could understand how to make and use your idea – without running too many experiments and simply hoping for the best. This standard is known as “sufficiency of enablement”; if your patent application fails to meet this standard, you won’t receive a patent.
However, you don’t need to provide a prototype to the US Patent and Trademark Office (USPTO); in fact, you don’t even need to build a prototype before filing your patent application – unless you want to patent a perpetual motion machine. In that case, the USPTO wants to see a working model first!
So what do you need to file your patent application? Well, you do need to understand, yourself, how you would make and use your invention. You need to have enough technical and engineering information that you could build the product if you received enough funds. One standard that I find handy is having enough drawings – preferably at least 7-10 drawings for your patent application. The Space Elevator patent has eleven sheets of drawings with 18 separate figures.
If you can’t create at least 7-10 drawings for your patent application, then you aren’t ready to file yet. Thoth clearly thought through the design challenges and not only provided the drawings but also described them in detail in the text. You also need to be able to tell the story of your idea through the text, with enough detail so that someone in your field – say, someone that you meet at a conference – could understand the patent application without you explaining it over their shoulder.
WHAT CAN WE LEARN FROM THE SPACE ELEVATOR?
Thoth wanted to get a patent for their invention and so they filed fast – their first patent application was filed back on February 21, 2007 – more than 8 years before their received their patent. They were much further from a prototype then but didn’t hesitate to file their patent application quickly to beat the competition.
Don’t think that there’s competition for such a way-out idea as the space elevator? The Japanese corporation Obayashi has already announced their plans to build a space elevator by 2050 – and other companies are waiting in the wings, trying to get funding for their ideas.
By filing fast, Thoth made certain that they filed first for their space elevator ideas. But why on earth did they do the extra work of filing for a patent in the United States?
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