You don’t need a patent to make, use or sell your invention. But if you want the exclusive commercial rights to make, use or sell it, plus the ability to license others to do the same, you will need a patent to protect those rights.
But first determine whether your grand idea requires a patent, trademark or copyright, the three types of intellectual property protection provided by the government.
Trademarks include any word, name, symbol, device or any combination of those used in commerce to identify manufactured goods. Service marks are the same type of protection for services rather than goods. Copyrights protect literary, artistic and musical works.
In contrast, patents protect inventions and invention improvements.
Once you’ve determined that your grand idea falls in the patent category, apply the same standard the government will when you file your application. A government patent examiner must be persuaded that your invention meets the “novelty” and “unobviousness” requirements to qualify it for patent protection. The novelty requirement is the easier one to meet. Your invention must be something different than what is already known to the public.
The “unobvious” standard, however, is a higher hurdle. The patent examiner will determine whether the invention would be considered “unobvious” to a person skilled in the technology of your invention.
Some things simply cannot be patented. Those include mental processes or abstract ideas. Ideas that cannot be reduced to hardware or that don’t involve manipulation of hardware or symbols are outside of patent protection. Among unpatentable items are abstract scientific principles, cloned human beings and unworkable devices such as a perpetual motion machine.
There are four types of inventions that can patented:
Processes
Machines
Articles of manufacture
Chemical compounds
A large percentage of the 115,000 patented ideas every year never reach market, and many of those that do are not profitable. But many do and are.
All these considerations are irrelevant if your invention doesn’t meet a substantive market demand. Unless you are simply collecting patents for your trophy case, you should consider whether your invention meets an existing commercial demand. Even if it does, you also must consider whether others are solving or seeking to solve the identical demand with their own inventions. No matter how enamored you may be with your grand idea, it’s the marketplace that determines success or failure.
