ASK THE EXPERT: How do I know if I have an “idea” that I can patent?

Starting a business is exciting, but it often comes with many risks and uncertainties. For most entrepreneurs, having a trusted resource when problems arise can often be the very element needed to achieve game changing success.

“Ask the Expert”, our biweekly feature designed especially for startups, invites North Texas industry thought leaders to share helpful advice and strategies with current and aspiring business owners.

Valerie Mason Davis is an attorney and CEO of The Mason Group Patent Specialists, which provides expert intellectual property analysis, advise and acquisition for Fortune 500 corporations, leading middle market, and emerging growth companies. They are primarily focused on and take great pride in obtaining patent protection for a wide range of technologies.

CAN I PATENT MY IDEA?

By Valerie Mason Davis

When people discover that I am a patent attorney, oftentimes the next thing they say is, something to the effect, “Hey, I have this idea (followed by a broad description of said idea), do you think I can patent this?”  Although well-meaning enough, the question makes me cringe, just a little. The resulting conversation reminds me that although most people have heard of a patent, they generally know very little about what a patent is, whether a patent is right for them, and, if so, what it takes to get a patent.  This can put some small business owners, including start-ups, at a huge disadvantage, especially owners of technology-related companies.

As a good business person, there are many areas where you don’t have to be an expert to effectively lead and grow your business, e.g., marketing, accounting and finance, payroll, etc.  However, you do need to know enough to ask the right questions and get the right help. The following 4 tips are designed to help you do just that with respect to patent protection.

Tip 1: You Might Not Need a Patent

A wonderful thing about our society is that we have the opportunity to protect and, thereby, potentially derive economic benefit from expressions of our creative and innovative thoughts.  This can come in a variety of forms, with the most familiar being copyright, trademark, and patent protection, collectively and commonly referred to as intellectual property (IP). By primary distinction: copyright protects the creative expression of an idea fixed in a tangible medium, such as paintings, photographs, sculptures, writings, software, etc.; a trademark is a word or symbol (such as a logo) that indicates the source or origin of goods or services to which the word or symbol is affiliated, think of branding; and patents protect “inventions” such as a new type of memory chip in a smart phone or a process for making the smart phone (utility patents), or the look of the arrangement of icons on a display (design patent).  Generally, the complexity (and thereby cost) of getting the different types of IP protection can vary greatly, with patents typically being the most complex and costly to obtain.

Tip 2:  You Have to Have More Than Just An “Idea” to Get a Patent

Having an idea or a concept of something that you believe is the “next best thing” is a critical starting place for inventing.  However, an idea or concept in itself cannot be patented. You need to have some proverbial meat on that idea, and that meat delineates the invention. One of the requirements to get a patent is a detailed written description (DWD) of the invention, ending with one or more claims that define the metes and bounds of the invention, similar to how property lines define the metes and bounds of real estate.  As you can imagine, to meet the DWD requirement, you need to go far beyond the simple “hey, I have this great idea” stage.

Tip 3: The More You Have Thought Through and Documented Your Invention, The Better

Everyone knows that in Texas, bigger is better.  In the patent world, more is generally better in terms of the effort you take to think of as many ways as possible to implement your invention.  In general, you should have one or more drawings that illustrate different aspects of your invention and be prepared to describe those drawings in sufficient detail.  Additionally, a well-documented invention can save a patent professional time in preparing a quality detailed written description, thereby saving you money in the short and oftentimes long run.

Tip 4: If You Still Think You Need A Patent, Talk To A Patent Professional

The patent process is super complex.  In order to become a licensed patent professional, you must have an approved technical background and take a special bar exam. In fact, from 2013 to 2016, the percentage passing rate of the patent bar exam was less than 50%.  Additionally, the manual that governs patent procedure (aptly called the Manual of Patent Examining Procedure or MPEP for short) is thousands of pages, not to mention the number of court decisions rendered annually that interpret various aspects of patent law.  With all that being said and after considering all the tips given above, if you truly believe you have invented “the next best thing” that can bring value to your company for years to come, wouldn’t it make sense to get someone well-trained in patent protection instead of opting for the DYI option?

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