Have a Question?
Do you have a patent-related question that isn’t answered here? Please submit it to us — we’ll respond with an answer (or try to!), and might even add the question and answer here.
In the United States, from the first time you publicly disclosed it or ‘offered it for sale’ in any way, you have one year to file an application for patent.
If you miss that date, anything that was disclosed or offered for sale is barred from ever receiving a patent. However, improvements you may make to the invention that have not been publicly available or for sale for more than one year are not barred, and may be patentable.
Note, however, that “experimental use” is typically not considered a “public disclosure” if the invention is not yet ‘ready to patent’ and you are still testing it. This can be a very tricky exemption, and it is best to seek competent counsel before relying on it.
Best Practice: File a patent application before disclosing your invention to anyone. If you disclose it, don’t panic: file a patent application (such as a provisional patent application) BEFORE one year.
Tongue-in-Cheek Answer: Let’s try to patent it and see!
Humor aside, a knowledgeable patent professional will rarely — if ever — definitively answer this question (and even then only if it is clearly un-patentable). There are a number of factors that affect the patentability of an invention — what is claimed, what has already become public knowledge, quality of the application filed, Examiner’s personal experience and perception of the application, even patent prosecution budget, and much more.
However, while these factors make a definitive certainty about the patentability of an invention impossible, they can also be thoughtfully evaluated and compared to give an educated guess at the probability that an invention is patentable.
Questions to ask include:
- What field is the invention in?
- What is the improvement over the prior art?
- How close is the prior art?
- What has already been disclosed?
- What problem did this solve?
- How much did the solution save people?
- What other solutions have been developed for this problem?
- How close is this solution to similar solutions in other fields?
Your patent professional can help you step through these questions — and others — and evaluate the possibility of patentability, and weigh it against your potential ROI on any patent(s) that may be issued.
In a nutshell, the answer to why patent? is to maximize the invention’s potential. A patentable invention is not only new but useful. For that invention to actually achieve usefulness, it must be commercialized.
Commercialization takes time and money – both of which are scarce resources. In order to justify the investment of those resources, there must be a reasonable expectation of return. This expectation can be assisted (not guaranteed!) by a patent ‘fence’ that protects the entity investing in commercialization long enough to realize a return on the investment.
Ultimately, everybody should win. The inventor and the ‘commercializer’ receive a return on their investment – and likely invest at least some of that return in further inventions and commercialization. The public receives access to new and useful improvements to machines, processes, chemicals, and more.
Why patent? In order to employ a powerful tool that – when used properly – helps inventors improve peoples’ lives and, ultimately brings glory to the Creator as they reflect His creativity and uncover and harness the wonders of His Creation.