How to Know if My Idea is Already Patented?
Summary
TLDRIn this video, patent attorney Dylan Adams discusses the complexity of determining if an idea is already patented. He differentiates between patentability and infringement, explaining that patentability involves whether an invention is new and non-obvious, while infringement relates to whether a product or process violates an issued and enforceable patent. Adams advises focusing on creating the best product rather than worrying about patent issues, as many ideas change during development, and emphasizes the difficulty of accurately assessing patentability or infringement early on.
Takeaways
- đ§ The question 'Is my idea already patented?' usually has two meanings: whether it's patentable or if it infringes on existing patents.
- đ« Patent infringement is about violating the claims of an issued and enforceable patent, not just similarity.
- đ To obtain a patent, one must file a non-provisional application, wait for examination, and then pay an issue fee upon approval.
- đ Patentability involves a prior art search to determine if an invention is new and non-obvious compared to existing technology.
- đ Prior art includes issued patents, published patent applications, and any technology disclosures like blog posts or scientific papers.
- đ Doing a patent or prior art search can be difficult due to the vast amount of information and the challenge of determining relevance.
- đ« You cannot infringe on a pending patent application; it must be an issued and enforceable patent.
- đ Patents can offer a spectrum of protection, from broad coverage that's hard to design around to very narrow scopes.
- đ ïž It's often not advisable to do a patent search on just an idea, as details of implementation are crucial and can change.
- â±ïž Patent applications are kept secret for 18 months, meaning there could be relevant prior art that's not yet publicly available.
- đ Focus on creating the best product possible rather than worrying about patent issues, as product quality is often more critical to success.
Q & A
What is the main difference between patentability and patent infringement?
-Patentability relates to the examination process to determine if an invention is new and non-obvious over the prior art. Patent infringement, on the other hand, involves comparing a product or process to the claims of an issued and enforceable patent to see if there's a violation.
Why is it difficult to determine if your idea is already patented?
-Determining if your idea is patented is complex because it involves understanding the difference between patentability and infringement, conducting thorough prior art searches, and interpreting the claims of issued patents, which can be challenging due to their often complex and specific language.
What is the role of a non-provisional patent application in the patent process?
-A non-provisional patent application is the formal document filed with the patent office to begin the process of obtaining a patent. It initiates an examination process that can take one to three years, during which the examiner assesses the novelty and non-obviousness of the invention over the prior art.
How long does a patent application typically last before it can be enforced?
-A patent application typically lasts for about 20 years from the filing date of the non-provisional application. However, it can only be enforced once it has been granted as a patent, not while it is still a pending application.
What is 'prior art' in the context of patentability?
-Prior art includes any technology disclosure such as issued patents, published patent applications, blog posts, YouTube videos, scientific papers, product catalogs, or any other form of public disclosure that existed before the filing date of a patent application.
Why is it not advisable to conduct a patent or prior art search based on just an idea?
-It's not advisable to conduct a patent or prior art search based solely on an idea because the details of how the idea will be implemented are crucial for a thorough search. Often, the specifics only become clear after further development, prototyping, and market research.
What are the potential consequences of not being able to find all relevant prior art during a patent search?
-If all relevant prior art is not found during a search, it's possible that an invention might be considered patentable when it's not, leading to potential infringement issues later on. Additionally, pending patent applications are kept secret for 18 months, which means there could be undisclosed prior art that could affect patentability.
How can you tell if your product infringes on an existing patent?
-To determine infringement, you compare all the elements of the claims of an issued and enforceable patent to your product. If your product embodies all the elements of at least one claim of the patent, then it infringes.
Why is it recommended to focus on creating the best product rather than worrying about patentability or infringement early on?
-It's recommended to focus on creating the best product because businesses are more likely to fail due to poor product quality than due to patent issues. In the early stages, the idea may change significantly, making initial patent and infringement analyses less relevant.
What are some resources mentioned in the script that can help determine patentability and infringement?
-The script mentions that there are free resources available for looking up patent applications, issued patents, and prior art, although it does not specify what these resources are. These resources can help in determining whether an idea is patentable or if it infringes on existing patents.
What is the significance of the claims section at the end of a patent?
-The claims section at the end of a patent is significant because it defines the scope of the legal protection granted by the patent. It is these claims that are compared to a product or process to determine if there is infringement, not the description or drawings.
Outlines
đ§ Understanding Patentability and Infringement
The paragraph introduces the complexity of determining if an idea is patented. It emphasizes the difference between patentability and infringement. Patentability concerns whether an idea can be patented, considering prior art, while infringement is about whether a product or process violates an existing patent. The speaker, Dylan Adams, a patent attorney, explains the patent application process, including the examination phase and the difference between provisional and non-provisional applications. He also mentions the 20-year patent term from the filing date of a non-provisional application.
đ The Challenge of Prior Art and Patent Searches
This section delves into the intricacies of prior art searches and patent searches. It highlights the difficulty of determining relevance in prior art and the challenge of conducting effective searches due to the vast amount of information available. The paragraph discusses the 18-month secrecy period for patent applications, which can make it hard to find relevant prior art. It also touches on the importance of product details in conducting a thorough search and the varying degrees of patent protection, from broad to narrow.
đ« Infringement Analysis and Its Limitations
The focus of this paragraph is on patent infringement, which is tied to issued and enforceable patents. It explains that infringement analysis is complex and involves comparing a product to the claims of a patent. The paragraph clarifies that infringement is determined by the presence of all elements of at least one claim in a product. It also discusses the difficulty of finding relevant issued patents and the challenges in understanding patent claims, which are often complex and hard to interpret.
đ Caution Against Overemphasis on Infringement
The final paragraph advises against obsessing over potential patent infringement issues during the early stages of product development. It suggests thatćäžè should focus on creating the best product possible rather than getting lost in patentability and infringement concerns. The speaker points out that many ideas change during the R&D process, making early infringement analysis unreliable. He also mentions that unknown pending patent applications can become a risk only after they are issued, which could not have been anticipated.
Mindmap
Keywords
đĄpatent
đĄpatentability
đĄinfringement
đĄprior art
đĄpatent search
đĄpatent application
đĄclaims
đĄprototype
đĄpatent attorney
đĄpatent examination
đĄissued patents
Highlights
Determining if an idea is patented is complex and involves different analyses for patentability and infringement.
Patentability concerns whether an idea is new and non-obvious, while infringement is about using an issued and enforceable patent.
Infringing a patent requires violating the claims of an issued and enforceable patent.
A patent application must go through a 1-3 year examination process to become an issued enforceable patent.
Patent applications are held in secret for 18 months, making them invisible during a patent search.
Prior art includes issued patents, published patent applications, and any technology disclosures like blog posts or scientific papers.
Doing a patent or prior art search can be difficult due to the vast amount of information and the challenge of determining relevance.
Patent claims are the key element to consider when analyzing infringement.
Infringing a patent requires meeting all elements of at least one claim of an issued patent.
It's recommended to focus on creating the best product rather than worrying about potential infringement early in development.
Patent protection can vary from broad coverage to very narrow, making it difficult to design around a patent.
The patent search process is not typically recommended for early-stage ideas due to the evolving nature of product development.
Innovations can pivot during development, changing the patentability and potential for infringement.
Business failure is more often due to poor product quality than patent issues.
There are specific instances where a patent search is recommended, which are detailed in other videos on the channel.
Engage with the channel for more insights on patents and startups, and subscribe to stay updated.
Transcripts
so how do you know if your idea is
already patented it's actually
a pretty difficult question to answer
and kind of more complex than people
realize
and this video is going to give you all
the details on that stick around we are
starting
right now
[Music]
so for those of you who are new here my
name is dylan adams i'm a patent
attorney and author of the best-selling
book patents demystified which is an
insider's guide to protecting ideas and
inventions used by inventors
entrepreneurs and startups worldwide
including at top universities
like harvard stanford and mit you might
also recognize me from my appearance on
cnbc's hit show the profit
with marcus lemonis so this channel is
all about giving you insider tips
on protecting ideas and adventures that
i use with my clients every day so be
sure to subscribe the channel for more
on
patents and startups all right let's go
ahead and get right into it so when
people ask the question
is my idea already patented it's
important to unpack that question
because people are usually asking
one or both of a couple of questions and
really the analysis to answer these
questions are completely different
so when people ask is my idea already
patented they're asking
hey am i going to be prevented from
doing something
because there's already a patent out on
something similar to my
idea or invention okay so the first is
you know is my in is my idea going to be
patentable and that's patentability okay
so the other question is
is my idea would it infringe on somebody
else's patent and those are completely
different things
patent infringement is completely
different than patentability
and what i'm going to explain to you is
the difference between those two things
and then also answer the questions
you know you know how do you determine
whether something is infringing
how do you determine whether something
is patentable and be sure to watch until
the end because i'm going to give you
some free resources
that you can use today to look up patent
applications issued patents and prior
art that's going to help you determine
these things so let's start with the
first question
is is your idea will that infringe on
somebody else's patent okay
now again that's very different than
patentability so we're starting with
infringement
so infringement requires that you
infringe the claims of an
issued and enforceable patent so so this
is very different than patentability
because infringement requires
you you to be infringing an actual
issued and enforceable patent
and how you get an issued enforceable
patent a lot of people don't realize
that
so you have to file a non-provisional
patent application that application
waits in line for one to three years an
examination process goes
on between the applicant and the
examiner and hopefully the examiner
is convinced that what the applicant has
is new and non-obvious over the prior
art
and then will allow the application an
issue fee is paid
and then the application grants as a
patent
so you can't infringe a pending patent
application
and patent applications only last 20
years
from the filing date of the
non-provisional typically you know
plus or minus sometimes but that's sort
of a good assumption about 20 years
so only once an application has granted
as a patent
and then as long as the term is is in
force
that's the only time when you can
actually infringe somebody else's patent
okay so that's in contrast to
patentability patentability
that relates to the examination process
so
that so you file again you file a patent
application
it waits in line for one to three years
and then the examination process
goes on with the examiner so if you file
your patent application
the examiner is going to do a prior art
search
when the examination process begins and
what the examiner is going to determine
is
whether the claimed invention is new and
non-obvious over the prior art
that's already out there before you
filed your patent application
so yes that could be issued patents kind
of like with
with infringement but prior art is so
much broader than just
issued patents it can include pending
patent applications that have published
whether or not those pending patent
applications have issued as a patent
or whether they're whether they went
abandoned and they never issued or
and are never going to issue but it can
also include
any sort of technology disclosure it
could be blog posts it could be youtube
videos it could be scientific papers
it could be product catalogs really
any sort of technology disclosure is
going to be prior art
and that's why it's essential that you
understand the difference between
patentability which relates to prior art
and the patent examination process
compared to infringement which relates
to a product
compared to an issued an enforceable
patent
so then how do you answer these
questions so let's first start off with
patentability and again that's relating
to prior art that's the determination
that the examiner is going to be making
whether the invention you have claimed
in your patent application is new and
non-obvious
compared to any sort of prior art which
is a broad spectrum of things
so to determine patentability the best
thing to do is to do
a patent or prior art search there are
very similar sorts of things a patent
search that's just going to be focusing
on
prior art that is issued patents or
patent publications
and i would say that's 95 of the time
what the rejections are going to be
based on
during the examination process and
that's why some people will call it a
a patent search because those are the
sometimes the easiest things to do a
search on
and so a prior search may just focus on
patents
whereas you can look at a do a general
prior art search with you can you can
look at product catalogs you can look at
blog posts you can look videos
you can really open up the world of
potential prior to a lot of different
things
instead of just issued patents or
published patent applications
so doing a prior art search or a patent
search is actually
pretty difficult there is a lot of stuff
out there and it's not really easy to
determine what's relevant and what's not
you people think well there's keywords
that you can search and yeah that's
that's possible in a lot of ways and
yeah you can search by classification
and
search for things that are similar but a
lot of times there's a lot of irrelevant
stuff in there
and you can spend a lot of time uh
searching for things that are completely
uh irrelevant and it can be hard to find
things that are actually on point to
what you're
actually doing and that's one of the
unfortunate things about the patent
system people want to say well i want to
know if my invention is patentable or
not
but it's really difficult to figure that
out especially for more complex
inventions things that have a lot of
elements it's really hard to do an
effective priority search on things
also there's the issue that like i said
earlier patents are held in secret by
default
for 18 months from their their earliest
priority date so
there's a lot of prior art that's very
very relevant that being pending patent
applications
that you may not even be able to find
whatsoever because it's held in secret
and that you file your patent
application and then it becomes publicly
available and could be used against your
patent application
and could totally make what you have uh
not
patentable you would not know about
those things because it hasn't become
publicly available yet
and that's again one of the limitations
of doing a patent of priorities
there's a lot of stuff that's completely
hidden to you you're just really
not going to know and also too you know
it's a very
cart before the horse and what i mean by
that is a lot of people have an
idea for something but patentability is
typically going to be in the details of
how something is actually done
and so to do a good job on a patent or
prior art search
you really need to know the details of
how the product is done and a lot of
times that can take a long time you know
you really need to think about things
maybe build a prototype spend a lot of
time doing market research and maybe get
it in front of
customers before you really know what
the final product is going to be
and that's why in a lot of ways i don't
recommend doing patent or prior searches
on on ideas because the kernel of an
idea
yeah that's not going to be pable it's
in the details and usually it's better
to wait
until you've you have more details on
stuff but at that point
you have a lot invested in the product
and it makes more sense just to file
your patent application
another thing to consider is that
patents aren't just a binary thing and
by that i mean
it's not just you have a patent or you
don't patents can provide a
spectrum of protection you can have
patents that are really broad and cover
a lot of different variations
so it's really difficult to design
around the patent and to design around
your product and say do something that
is is similar but still not infringing
by doing something different
a broad patent is going to cover a lot
of variations and be hard to design
around
and it's going to be a lot easier to
infringe whereas you can have a patent
the way the claims are written are so
narrow and so specific it's almost
impossible for somebody to infringe that
or very easy for them to make tiny tiny
little changes and get around the patent
so again
these are all the reasons why a lot of
times it does not make sense to do a
patent or prior search and i've got some
good videos
and the channel that uh talk about this
in detail so be sure to check those out
but yeah a lot of times unfortunately i
mean as as much as people
want to know whether their idea is
patentable it doesn't usually make sense
to do a patent or prior art search
unfortunately
okay so what about the issue of
infringement then and again
remember that infringement relates to a
product or a process
related to an issued and enforceable
patent
so again this only relates to issued
enforceable patents
and it relates to comparing the issued
patent claims
to what the product actually is and a
lot of times people say well
hey i don't want to start producing a
product or start going down down the
road of uh
you know creating a startup when this
has already been patented and i would
infringe on
on somebody else's patent unfortunately
again
it's not very easy to do what you would
have to do is you would have to do
similar to a prior search you would have
to search for issued and enforceable
patents
and you have to find ones that are
relevant to what you're doing
and unlike a priority search where where
you're looking at patentability and
you're
looking at the drawings and the
description and those are relevant
to patentability patent infringement
relates only to the claims of an
issued and enforceable patent now for
those who don't know what claims are
they're this weird little section at the
very very end
of an issued patent and they're also in
a published patent application although
those claims aren't enforceable
the claims are this little section at
the end that's really strangely worded
difficult to understand and parse it's
these little single sentences
that are numbered typically there's
going to be you know anywhere from 1 to
20 that's the typical number but there
can be more
but it's not the paragraph numbers
they're going to be these numbered
sentences
everyone starts with a capital letter
ends with a period
but again they're really difficult to
understand and parse which is why
most people think infringement relates
to the specification
or the description and the drawings
which is totally untrue
it's only those weird claims at the very
end
of an issued patent that really
determine whether infringement is
present and that's one of the things
that makes doing analysis of
infringement
really difficult even for someone like
me who i you know i've been doing
patents for a
long time it's a very detailed analysis
to determine whether infringement is
present or not
first you have to find issued patents
that are relevant which
is very difficult to do and like i said
i mean with doing prior searching it's
hard to find stuff
and then the same thing with issued
patents it can be hard to find stuff
that's relevant
and especially with issued patents the
claims may
totally indicate infringement but stuff
in the description
and in the drawings it may be it may not
be obvious that these claims would
actually read on what you're doing
okay so the way you do an infringement
analysis is you take
all the elements of the given claims and
you compare them to the product
and to infringe a patent you just need
to infringe one claim
of that patent so let me give you an
example of how that would work so let's
say you have a claim and it has the
elements a
b c and d so the way you do an
infringement analysis of that is you
could you take the product
and you can you you look at the
different elements you say okay
this claim has elements a b c and d does
the product have element a
yes or no does it have element b yes or
no does it have element c yes or no does
it have element d
yes or no and if you say yes to all
those four
elements in the claim then infringement
would be
present in that claim and so the patent
would therefore be
infringed so what about the case where
your product only has elements a
b and c but doesn't have element d then
infringement would not be present
okay so you need to have all the
elements of at least one claim of the
issued enforceable patent
for there to be infringement okay but
what about if you have elements a b
c and d and then you have elements e and
f what about then well
that doesn't matter it doesn't matter
whether you have e or f or z or x or y
or whatever
as long as you have those those four
elements a b c and d
in the product then there would be
infringement present so that's
the big difference between infringement
and patentability infringement again
relates specifically to the claims of an
issued enforceable patent but
you know again it's really difficult to
do that kind of analysis and again i
don't recommend doing these sort of
analyses
it's it tends to be very very specific
just kind of like doing
the prior art uh search and analysis
related to patentability doing
infringement analysis
is even more difficult and more detailed
and is going to hinge upon the very
specific details
one little small element being present
or not can mean the difference between
patentability and not
and so especially in the early stages
where all you have is an idea
it's effectively impossible to do a
prior art search because you don't
necessarily know
how you're actually going to implement
your idea you may have a good idea
but until you actually say build a
prototype and you start working towards
developing
a finalized product ideally that's going
to be your minimal viable product or mvp
that's going to you know start you down
the the route working with the customers
and and launching your product
you're not going to know what that
specific product is going to have
okay and people make the mistake they
say well you know i have this general
idea and there's a lot of stuff out
there i'm afraid that i'm infringing
but during the r d process things change
a lot and i would say i've seen this
many times where you know maybe the
original idea could infringe some
patents but then
they pivot and do something different
and then the product ends up being
something that is totally not infringing
um and you know you know vice versa
people start off with a
you know a product that wouldn't be
infringing and then is infringing
i usually tell people don't worry about
the whole infringement issue
focus on making the best product that
you can make and that's what's most
important
businesses are far more likely to fail
because
they can't get the business off the
ground if they don't have a good product
then infringement is an issue or
patentability is an issue usually those
are going to be
very very secondary to uh you know
having a product that just
isn't very good and doesn't get off the
ground so focus on
creating the best product that you can
that should be your focus
don't go down the rabbit hole of well is
my product patentable or not or is my
ideal do you have patented
or not that surprisingly doesn't matter
all that much
and this the same thing going down the
rabbit hole i was like well could i
infringe people would i infringe
people's patents
you know you're not going to be able to
make a good determination of that
it's really really difficult to do and
like i said you know there could be some
patent applications that are pending and
you do all this analysis and research
and say okay well i feel comfortable
that i'm not infringing any patents
but the application is held in secret
and then you know
the the day you launch it issues as a
patent and you're infringing
you you you can't you couldn't have
known that it from the beginning so
again
you know i i i usually caution people
against freaking out about
infringement and patentability there are
some cases where you do want to do a
patent or prior search and i have a good
video on that that sort of describes
the few times where i think it is
recommended to that
so check out the channel for more on
patents and startups be sure to
subscribe and hit that little bell icon
so you don't miss any patent
patent videos and let me know down in
the comments what you what you think
about this does this surprise you
do you disagree there's a lot of times
where people say hey
this is just crazy you know you have to
know whether infringement or press is
present or not or you
have to know whether something is
patentable and so i'd love to hear your
thoughts on that
there tends to be some controversy about
those things so thanks again for
watching really appreciate it
and we'll see you again in the next
video
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