By far, most inventions are improvements upon other known devices or solutions. In fact, whenever I teach patent law courses I tell students that in their career as a patent attorney they are unlikely to ever come across a pioneering invention (i.e., first of its kind, revolutionary invention). Even the great Thomas Edison, the most prolific inventor in US history, rarely came up with pioneering inventions. What Edison really had a knack for was taking something that someone else had come up with and making it extraordinarily better. So the first lesson here is that inventors can and most frequently are those who improve upon the work of others. The second lesson is that those inventors who focus on improvements can be quite successful indeed!

Before proceeding, lets do a little test to see how much you know about patent law and innovation. Place these hitch mounted toilet seats in chronological order by filing date of the corresponding US Patent Application.

#1 Vehicle mounted toilet seat

#2 Trailer hitch portable toilet

#3 Hitch mounted portable toilet seat

Assuming you didn’t go and look I suspect you had a difficult time, although many probably figured out that I didn’t pick these inventions at random and there was likely something odd in play, which there is at least to some extent.  Of course, the invention will catch many as odd, but I wanted to pick something everyone can understand, and toilet patents are always fun if not bizarre.

Now I do not profess to be the mythical and hypothetical one of skill in the art of hitch mounted toilet seats, but I would have to say that sitting on #3 looks the least comfortable, so at first glance I would have to say that looks to be the earliest prior art.  Invention #2 looks to be quite an improvement if you ask me.  Not only does it have a canister to collect that which is being discarded rather than it simply falling on the ground, but it also has a toilet paper roll.  So #2 looks to me to be the Cadillac version of hitch mounted portable toilet seats!  So that should mean that #1 fits in between #3 and #2.  WRONG!

#1 is US Patent No. 6,125,480, which was filed on November 3, 1998 and issued October 3, 2000.

#2 is US Patent No. 6,775,860, which was filed first as a provisional patent application on April 12, 2002 and subsequently as a nonprovisional patent application on April 11, 2003 and issued August 17, 2004.

#3 is US Patent No. 6,571,402, which was filed on May 9, 2002 and issued on June 3, 2003.

What gives?  Well, it is usually a surprise to most people to learn that there is not a requirement that an invention actually be an improvement in any real sense in order for it to be patented.  So when patent attorneys and patent agents talk about an improvement patent we are typically talking about inventions that build upon and/or somehow relate to the prior art.  So the next lesson is this: just because it can be patented doesn’t mean it really is an improvement in the real sense of the word.  Said another, perhaps more harsh, way: just because it can be patented doesn’t mean it should be patented.

I have long told inventors that in almost all cases the question is not whether you can obtain a patent, but rather whether the patent you can obtain is attractive enough to warrant the time, money and energy necessary to obtain the patent.  No one is going to back up a money truck to your door step upon being awarded a patent.  Obtaining a patent can be a critical step in the commercialization process, or it can be a complete waste of time and money.  So be careful out there, and for goodness sakes have a plan!

I only slightly jokingly say anyone can get a patent on anything.  The real test is whether the invention is new and non-obvious.  Practically everything is patentable subject matter in the US (i.e., “anything made by man under the sun”) and everything is useful, at least if it does what you say it does.  So, for example, if you were to come up with a potion made up of arsenic, cyanide, hemlock mixed in a gasoline base, with sugar added to make the medicine go down, you could say this is useful to kill cancer cells and the Patent Office is OK with that because is does kill cancer cells.  The Food and Drug Administration (FDA), on the other hand, might have some problems with the invention and never let it make its way to market, but the USPTO is on board!  So in patent law the two critical questions are is the invention new (i.e., novel) and is it non-obvious (i.e., not trivial or common sense).

In the past I have written that if  you want to be an inventor just take some tangible object that has nothing to do with a radio and integrate a radio.  In truth, this historically has been a successful strategy.  See, for example:

1. Invention of folding chair with portable stereo system
2. Beach chair with integral audio player
3. Beach chair with integral audio player
4. Hairbrush with integral radio receiver
5. Hand-held hair dryer having housed radio receiver
6. Radio equipped umbrella
7. Pillow radio apparatus
8. Audio pillow with sun shield
9. Pillow radio apparatus
10. Stereo sound pillow and method of use

It might be harder to do this today as a result of the Supreme Court decision in KSR v. Teleflex, but the point is this.  Something is “new” in patent terms if there is no prior art that is identical.  Something is non-obvious if the totality of the invention would not have been appreciated as existing prior to the invention thereof by the inventor.  In other words, would someone have been able to rearrange the prior art pieces and parts to make your invention?  If yes, and it could be done in a trivial, common sense way, then the invention is obvious.  But the reality is the more specificity, the more layers, the greater the number of features the greater the likelihood of obtaining a patent.  So eventually you add one last feature and the patent examiner cries “UNCLE!”  Well, maybe exaggerating a little, but you get the point.

So the moral of the story is that it is easy to be an inventor.  Just keep layering on specifics after specifics and eventually it will not be possible for even the most cynical patent examiner to be able to say you have an obvious invention.  Of course, doing that leads to patent rights that are extremely narrow.  This is why doing a patent search is critical.  You absolutely must have some sense of what is in the prior art before you start to spend money moving forward with patent applications, models, prototypes and manufacturing.  If too many layers of nuance need to be added to your invention then the patent might only be useful for hanging on the wall.  Now that can be a great use, particularly if you need some validation to show a skeptical significant other or family or friends, but a super narrow patent likely holds marginal commercial value, if any.

So be honest with yourself.  Is your “improvement” better enough from other available solutions so that others would be willing to buy yours?  But remember, since you will have the expense of a patent and other various commercialization expenses your invention needs to not only be better enough to buy, but it has to be better enough to pay a premium for.  The premium is what will compensate you for your expenditures.

Ideally, your invention will be better enough to support a premium, and better enough so that those who already have the closest substitutes will see your invention as so much better that they are willing to shelve their currently owned free and clear apparatus and buy your invention.

So would you pay good money for your invention?  Of course you would, but what about others?  Be honest with yourself.  You are about to spend a good chunk of money and if you are wrong you won’t be getting that back.  Worse yet, if you are an inventor you are a creative type and that means you will have other inventions, so pursuing an invention that has little marketability means less (or no) resources for the next invention.  Trust me, if  you have an invention you are an inventor and there will be others.  That is what the creative mind does — it creates.

In conclusion, Thomas Edison was extremely successful as an inventor and he did little other than improve the work of others.  What Edison did, however, was improve in the real world sense of the word, not in the patent sense of the word.  So take a lesson from the most prolific and successful inventor in US history.  If you want to make money invent where there is a market need and not just because it is cool, unless of course you are inventing a new and improved air conditioner, which presumably should be cool in addition to addressing a market opportunity!