When Do You Have an Invention? Moving from Idea to Patent
|Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog
Zies, Widerman & Malek
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Posted: Jul 9, 2011 @ 4:15 pm
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How to Patent an Invention Idea | Moving from Idea to Patent
By now everyone has undoubtedly seen the late night television commercials, and the online ads offering to help you patent your invention idea. Despite what these advertisements say, you cannot patent or protect an idea, but don’t despair. The idea is the first critical step toward being able to obtain a patent, and in my experience many inventors think they only have an idea and are not yet at the invention stage when, in fact, they really do have an invention that could be protected.
You will need to move from idea to invention and ultimately to a patent application, but the idea gets the ball rolling. Unfortunately, there are a lot of scams at work in the invention market, so you need to be careful and actively work to avoid invention scams. What you need is a strategy to help you move past the idea and learn to describe your idea with enough specifics so that it no longer is what the law would call a “mere idea.” In a nutshell, if you can describe your idea with enough detail you don’t have an idea, what you have is an invention, or at least the makings of an invention.
It is critical for inventors to document and expand upon any idea. If you continually add more details you will cross over the idea/invention boundary and be squarely on the invention side of the line. What you want to do is explain your idea, as well as any and all aspects and alternatives associated with your idea. This will then get you toward approaching the point where it becomes specific enough for it to be considered an invention. When you reach this point you have something that can be protected and patented.
In order to protect an idea it must mature into an invention first. What this means, in a nutshell, is that you need to be able to explain to others how to make and use the invention so that they could replicate the invention after simply reading your description of the invention in a patent application. You do not need to have a prototype, but if you do not have a prototype you will still need to be able to describe it with detail and provide sketches showing your inventive contribution. If you do not have the ability to illustrate your invention you can obtain patent drawings from a patent illustrator for quite cheap usually. You might also want to work with a company that provides 3D renderings, or an engineering firm that can assist you as you attempt to breathe life into your idea to get it across that idea/invention boundary and squarely into being an invention. In fact, having quality patent drawings is the single best and most economical way to broaden and expand any patent application. Having 3D renderings is also the best and most economical way to have something that is eye catching to show to those who are interested in your project, whether it be those who might fund the project or those who might be interested in licensing or acquiring your rights.
Unfortunately, if you are stuck at the idea stage of the invention process you are not ready to file a patent application, and also you do not want to run out and start telling people or submitting your idea to companies. Most companies do not accept the submission of ideas, because ideas are not legally protected and, as such, are free to be taken by others. If you do tell a company your idea and then later they develop the same idea this leads to people believing, sometimes rightly so, that their ideas may have been stolen. Many companies, however, have extensive research and development going on all the time, so it is just as likely that your idea overlapped with something they were already working on. For this reason, many reputable companies will not accept idea submissions, but rather accept submissions only of inventions that have a patent application pending. Companies that will listen to your ideas alone (i.e., without a patent pending or issued) should be thoroughly vetted before you trust them. Without patent protection there is no way to protect an idea absent a confidentiality agreement, and without such an agreement your ideas are legally free to be stolen. For that reason, before you proceed to starting telling people about your invention you really should consider having at least a provisional patent application on file, or working with a reputable licensing agent that has a track record working with reputable companies that are looking for ideas and inventions to license or acquire.
So what to do if you are stuck and need to move forward? One thing that I recommend is that you consider using the Invent & Patent System™ to help you flesh out your idea and put enough meat on the bones of the idea so that it will be transformed into a detailed description and invention. I created the Invent & Patent System™ to help me teach my law students how to write patent applications. It was so successful that I adapted it for use by independent inventors, and since 2004 it has been used successfully to help many thousands of inventors create and file their own provisional patent applications. In the latest version the system has been expanded even more to provide coaching, examples and templates that help inventors flesh out their inventions as they answer a series of 10 questions. So before you think you do not have an invention and all you have is an idea you might want to consider giving the Invent & Patent System™ a try. If you seriously answer the 10 questions, use the suggested answer templates and read the guidance provided to explain the point of each question you will be coached through providing enough information to transform your idea into an invention and you will have a disclosure appropriate for filing as a provisional patent application (I give you a patent sample template, the forms you need and detailed instructions).
You could also tell others about your idea in order to search for help, but I only recommend you do this with a signed confidentiality agreement in place. A confidentiality agreement, sometimes referred to as a non-disclosure agreement or NDA, is simply a contract between two or more parties where the subject of the agreement is a promise that information conveyed will be maintained in secrecy.
Confidentiality agreements come in a variety of forms. There are one sided agreements where one party is the disclosing party and the other party is the receiving party, and there are agreements where both parties are obligated to maintain secrecy. The mutual confidentiality agreement is useful when both parties will be conveying confidential information, such as for inventor groups or when the parties are exchanging information as a preliminary step to negotiating a business deal. Unilateral confidentiality agreements are useful when only one party is turning over confidential information, perhaps to a potential investor or prospective licensee. For more information on Confidentiality Agreements, including free samples that you can download and use, go to Free Sample Confidentiality Agreements.
Next, you might be able to locate some college students or graduate students who would be interested in working with you on your project. If you have a nearby university consider posting a notice on the bulletin board of the engineering school (probably requires college permission), or contacting the school directly to see if they might be willing to circulate your request for you. Many schools are more than happy to help their students find real world experience, particularly if you are willing to pay something for the student to work on your project. Indeed, finding college students to work for little or nothing is not so difficult, and in fact if you are willing to pay you might be surprised that you are able to draw from the top of the class. Remember, college students are poor, and graduate students have been in that state of poor for some time. They need the experience, resume fluff and some money to hold them over between student loan distributions, and their skills are very up to date. Of course, have them sign at least a simple confidentiality agreement.
You can also reach out to friends and family. You might be surprised what they can tell you and what directions they can point you in. A trusted friend who is analytical, creative or mechanically inclined can be a great source. Of course, you should still get some kind of written confidentiality agreement. This is not because you are afraid your friend or family member will steal the idea, but because once you start telling people about your inventions your right to keep the invention as a trade secret is completely lost unless you have such a confidentiality agreement. Furthermore, you might lose the right to ultimately apply for a patent. Some kind of agreement, even a watered down agreement that is non-threatening is key. For a non-threatening agreement try something like this: Simple Confidentiality Agreement. This agreement shouldn’t threaten anyone. It simply explains the importance under the patent and trade secret laws that your invention remain a secret.
Another idea is to join a local inventors group. These groups are all over the country and provide members a way to bounce ideas of each other. You can learn where to go to get reliable help and steps to follow in your invention pursuit. Some of these groups also have an online presence as well. They are truly a great resource for new and experienced inventors alike. Active groups will even meet in the real world and will frequently have guest speakers to address common issues. Many times these speakers are either patent attorneys in the area or successful inventors.
You can also learn a lot about how to do things by searching for and reading related patents. This is a great way to see what else is being done in the area of your invention. For information on how to conduct your own patent search online see Patent Searching 101. Once you have something that starts to look like an invention you should consider filing a patent.
Good luck, and happy inventing!
About the Author
Gene Quinn is a US Patent Attorney, law professor and the founder of IPWatchdog.com. He is also a principal lecturer in the top patent bar review course in the nation, which helps aspiring patent attorneys and patent agents prepare themselves to pass the patent bar exam. Gene started the widely popular intellectual property website IPWatchdog.com in 1999, and since that time the site has had many millions of unique visitors. Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, USA Today, CNN Money, NPR and various other newspapers and magazines worldwide. He represents individuals, small businesses and start-up corporations. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.