Question: How Do I Know if My Idea is Patentable?
Learning what a patent search includes and what patentability is, is often the first step in the invention and patent process for new inventors. Along with basic market research, I recommend that you consider a patent search prior to moving forward with filing a provisional or non-provisional patent application. The last thing you want to do is waste your time and money developing an invention only to find out later that it had already been invented and patented. Keep in mind; patent searching is not an exact science so you’ll never receive a 100% guarantee that the search found every applicable patent, which is an inherent risk in the process.
With that said, if you find a product similar to your invention, but nothing showed up in your patent search, I first thing I would advise is that you try to find out as much information as possible about the similar item. Is it currently being sold? Is it patented? I can tell you that only products with issued patents will show up in patent search results. Provisional patents will never show up in a patent search, because Provisional patents are NOT available to the public - they are not published, and the USPTO holds them confidentially. Also, products that have non-provisional patents filed, but which have not yet issued, will most times NOT be reflected in a patent search. Again, the patent search typically reflects issued patents. I'm sure you know, it is not necessary for every product being sold to have a patent. Products being sold, but which are not patented, would not reflect in a patent search. We always suggest to inventors that they do some amount of due diligence prior to spending any money on a patent search, in hopes of discovering additional info like this up front.
Without additional research, there’s no way to tell when the similar product was conceived, and whether it’s date or your date came first. And until your patent ultimately issues, you can't yet file "infringement" against anyone. There are many unanswered questions regarding the similar product that you found. You may want to discuss your options with a Patent Attorney or Agent.
Let’s discuss the term "Patentability". Patentability refers to the process of determining if your invention is eligible to receive a patent. One of the primary considerations of patentability is whether another patent already exists on your invention. This process of determining patentability involves reviewing and understanding existing patents as well as non-patented, similar products (together called "prior art") to determine the unique qualities ("novelty") of your invention. A USPTO examiner performs a "patentability assessment" during the patent review process. Some inventors also contract with a Patent Attorney or Agent to conduct a preliminary "patentability opinion" prior to moving forward with a patent application. This process does not guarantee that your patent application will "pass" the patent criteria followed by the United States Patent and Trademark Office, but it could be beneficial in the long run. Also, it is important to understand that this process is not an exact science. A patent attorney will do his or her best to find applicable prior art and to make a determination, but with the millions of patents that exist today, you will never receive a 100% guarantee.
One of the major factors of "patentability", as discussed above, is to consider what similar inventions are already patented. For best results, I would recommend that you hire a patent attorney or patent search firm to complete this step. A patent search is the process of searching for all previous issued patents. It may also include a search of foreign patents and printed publications. A patent search doesnot guarantee that your invention is or is not patentable; it is primarily focused on determining what similar or like invention(s) are already patented. Note: most companies that may consider licensing of your invention will inquire about your patent search results.
Lastly, I often am asked if one can modify an existing product? Yes. Modifications to existing products are done every day, which drives product improvements and competition. Many inventors focus purely on improving existing ideas and products, and profit from simply modifying products that are already on the market. The only caveat to this strategy is to ensure that you modify the invention in such a way that it is different from what the original patent holder has claimed. Many times, you can improve an existing product and receive patent protection on the "new" product.
About the Author:
Russell Williams cofounded InventionHome.com and MatchProduct.com to assist inventors and entrepreneurs through the patent and invention development and marketing process. He's been asked nearly every invention-related question in the book, and shares his wisdom in an article series, "Inventor Q&A".
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