Almost every start-up or entrepreneur has likely heard the phrase “patent” in passing conversation, but what exactly IS a patent? What rules determine whether or not an idea can be patented? Our 3-part explanation will (painlessly) explain the legal components of patents.
Let’s start with the most basic, but important question:
WHAT IS A PATENT?
A patent is a form of intellectual property—albeit intangible, but patents are a property that can be bought, sold, and rented just like any other form of property. However, there are baseline rules regarding whether an idea can be protected by a patent. Let us elaborate.
RULE 1: YOUR IDEA NEEDS TO FALL UNDER THE “PATENTABLE CATEGORY OF IDEAS.”
An invention or idea must fall under the patentable category of ideas. In real human terms, this means that your innovative invention or idea must be: electronics, software, a chemical molecule, protein, etc. We will focus on explaining the rules regarding software patents, as most technology start-ups and entrepreneurs are focused on this category.
A software patent can include app patents, game patents, and so on.
Applying Rule 1 To Your Patent Application:
So, how does this affect your patent application? While in the past, many entrepreneurs and start-ups believed that it was better to provide a broad description in one’s application, this has changed with a recent Supreme Court decision. Because of the Supreme Court case, it is now necessary to provide technical details (the more detail, the better) in the application.
With regard to the “patentable category of ideas” mentioned above, this means that if you are applying for a software patent, you must provide technical details in order to fall under the software category of ideas. If you do not provide enough technical detail, your patent application may be considered a “mere abstract idea” and thus, you will not be able to patent your idea.
RULE 2: YOUR PATENT APPLICATION MUST BE FILED BEFORE ANOTHER START-UP OR ENTREPRENEUR PUBLISHES ABOUT YOUR IDEA.
Wait, what? Let’s use an analogy. Let’s say your invention or idea is a unique piece of artwork. Your invention or idea will be judged against the entire body of art already available. In short, your patent application will be compared to any and all published information/ideas. “Publishing” includes published information such as patents, websites, printed materials, and products. However, in the U.S, you can publish information about your idea up to one year before writing your patent application.
Any type of public release of information is considered publishing. This could include releasing a product, writing about the idea on your website, or even verbally describing it on a forum such as TedTalks.
Pro-tip: If you publish your idea quickly and efficiently, you can prevent another start-up or entrepreneur from filing a patent for your idea after your publication. If you choose to not publish, someone else may file a patent first—and then you will be out of luck! Either file your patent fast or publish your idea fast!
RULE 3: YOUR IDEA MUST BE UNIQUE.
As mentioned above, your unique piece of art (aka your idea or invention) will be compared in the patent application to assess whether it is novel and non-obvious. The “novel” component is a low standard to meet—it simply means that your idea is new. However, “non-obvious” is subjective (and therefore is contingent upon providing a strong detailed, technical explanation of your idea as described above). “Non-obvious” means that your “invention” is just that—is it inventive? Is your invention innovative, and not simply a modification of prior technology?
Be sure to protect your idea now.
Do not delay in obtaining protection for your unique and innovative idea. Imagine if you were to develop new and innovative software, only to find your patent application blocked because you delayed in filing for the patent. If you are interested in reading more information about software patents [link], we have more reading for you!
Of course, each patent application is an individually unique process, and as such, you may not see the answers to your specific questions. Reach out to us and we will help you protect your idea! Through our custom packages, we can provide you with the advice you need to advance your patent application, and to ultimately protect your idea.