Has My Invention Already Been Patented?

Karen Axelton
Tue, 12 May 2009 00:00:00 +0000

You’ve got a great idea for a new invention. But has someone else already patented your idea or something similar? Is your idea patentable at all.

Understanding How Patents Work
Before you begin a patent search, start by finding out if your idea is one that can be patented. The U.S. Patent and Trademark Office (USPTO) Web site has detailed explanations of what can and cannot be patented. The most common type of patent, a utility patent, can be granted for a "new, nonobvious and useful process, machine, article of manufacture, composition of matter or improvement of any of the above." There are also design patents, which are granted for "ornamental design of an article of manufacture."
What does "new" mean when it comes to patents? An invention cannot be considered new if it was known or used by anyone in the U.S., or patented or described in a printed publication in the U.S. or a foreign country. It also cannot be considered new if it was in public use or for sale in the U.S. more than one year before you filed your patent application. This means that even if you are the one who put your (unpatented) product on sale, used it publicly or described it in print, you must apply for a patent on it before one year has gone by, or you will lose the right to a U.S. patent on the product.

What does "nonobvious" mean? An invention is "obvious" when the differences between it and similar inventions are so small as to be obvious to anyone who has "ordinary skill" in the field of the invention. For instance, if you invented a new catcher’s mitt and its only difference from prior catchers’ mitts was that it was slightly larger or a different color, this would be considered "obvious" and your product wouldn’t be patentable.

You cannot patent laws of nature; physical phenomena; abstract ideas; inventions that are not useful, or inventions that are "offensive to public morality." You cannot patent literary, dramatic, musical, and artistic works; these can be copyrighted. (You can find more information on copyright protection at the USPTO site as well.) And you cannot copyright an idea or suggestion—patents are only granted for actual products.

Last, but not least, you must be able to describe your invention "in clear and definite terms," and describe it adequately enough that a person with ordinary skill in the field of the invention, could make and use the invention. For example, if you’ve invented a new kind of catcher’s mitt, a person who manufactures catchers’ mitts should be able to read and understand your description enough to actually follow it and make the product.

Conducting a Patent Search

If you think your invention is patentable, the next step is to find out if someone else has already patented the invention or a similar invention. The USPTO does its own patent search after you file your patent application, but by then you will have put a lot of time, effort, and money into your application. Don’t wait until then; find out about other patents now.

You can do your own preliminary search for both issued patents and patent applications at the USPTO Web site. In addition to U.S. patents and patent applications, you also need to make sure the invention hasn’t been patented in any other country, or described in any U.S. or foreign publication.

If your online search doesn’t turn up anything, your next step is to contact the Patent and Trademark Depository Library (PTDL). The USPTO Web site has links to PTDLs so you can find the one nearest to you. At the PTDL, search experts can help you make a plan for doing a more thorough search.

Doing your own patent search can help you refine your idea in its early stages. If you find patents for inventions very similar to yours, you may not be able to get a patent, or you may not get a very strong patent.

Unless you are an expert in the field, your own patent search should be considered preliminary research only. Before you invest a lot of time and money in designing, developing, and pursuing your invention in earnest, you will want to hire a registered patent attorney or agent to do a thorough search for you. The USPTO Web site has links to registered patent agents and attorneys.

Karen Axelton is Chief Content Officer at GrowBiz Media (www.growbizmedia.com), a content and consulting company that helps entrepreneurs start and grow their businesses.