How to Know if My Idea is Already Patented?

Summary

In 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

• 🧐 The question 'Is my idea already patented?' usually has two meanings: whether it's patentable or if it infringes on existing patents.
• 🚫 Patent infringement is about violating the claims of an issued and enforceable patent, not just similarity.
• 📄 To obtain a patent, one must file a non-provisional application, wait for examination, and then pay an issue fee upon approval.
• 🔍 Patentability involves a prior art search to determine if an invention is new and non-obvious compared to existing technology.
• 📚 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.
• 🚫 You cannot infringe on a pending patent application; it must be an issued and enforceable patent.
• 📉 Patents can offer a spectrum of protection, from broad coverage that's hard to design around to very narrow scopes.
• 🛠️ It's often not advisable to do a patent search on just an idea, as details of implementation are crucial and can change.
• ⏱️ Patent applications are kept secret for 18 months, meaning there could be relevant prior art that's not yet publicly available.
• 🛑 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

00:00

🧐 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.

05:00

🔍 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.

10:01

🚫 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.

15:02

🛑 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 that创业者 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.

Keywords

💡patent

A patent is a form of intellectual property that grants the inventor exclusive rights to an invention, usually for a limited period of time. In the video, the concept of patents is central to understanding the difference between patentability and infringement. The script mentions that a patent must be 'issued and enforceable' to be infringed upon, highlighting the process from patent application to a granted patent.

💡patentability

Patentability refers to the criteria that an invention must meet to be eligible for a patent. It is mentioned in the script as a key factor in determining whether an idea can be patented. The video explains that patentability is linked to the novelty and non-obviousness of an invention over existing 'prior art', which includes issued patents, published patent applications, and other technology disclosures.

💡infringement

Infringement pertains to the unauthorized use of a patented invention, which the script distinguishes from patentability. The video clarifies that infringement occurs when someone makes, uses, or sells a product or process covered by an issued and enforceable patent without permission. It is tied to the specific claims of a patent, which are the operative part of the patent document.

💡prior art

Prior art consists of all information that is available to the public before the filing date of a patent application. The script explains that prior art is crucial in assessing patentability, as an invention must be novel in relation to the prior art. Examples of prior art given in the video include blog posts, YouTube videos, scientific papers, and product catalogs.

💡patent search

A patent search is a process of looking for prior art to determine the novelty of an invention, as discussed in the script. The video suggests that patent searches can be challenging due to the vast amount of information and the difficulty in discerning what is relevant. It is used to assess both patentability and potential infringement.

💡patent application

A patent application is the process of applying for a patent, which is mentioned in the script as a prerequisite to obtaining a patent. The video explains that a non-provisional patent application must be filed, and it undergoes an examination process that can take one to three years before potentially being granted as a patent.

💡claims

Claims in a patent are the specific, legally enforceable parts of a patent that define the scope of the invention. The script emphasizes that patent infringement is determined by comparing the elements of a product or process to the claims of an issued patent. Each claim is a single, numbered sentence at the end of a patent that outlines the invention's boundaries.

💡prototype

A prototype is an early model of a product used to test concepts and designs, which is referenced in the script as a step before conducting a thorough patent search. The video suggests that it's often more beneficial to build a prototype and refine the invention before worrying about patentability or infringement, as the details of a product can change significantly during development.

💡patent attorney

A patent attorney, like Dylan Adams mentioned in the script, is a legal professional who specializes in patent law. They assist inventors and businesses in securing patent protection for their inventions. The video is presented from the perspective of a patent attorney, offering insider tips and advice on navigating the patent system.

💡patent examination

Patent examination is the process by which a patent office reviews a patent application to determine if it meets the requirements for patentability. The script describes this process as happening after a non-provisional patent application is filed and involves a back-and-forth between the applicant and the examiner.

💡issued patents

Issued patents are patents that have successfully completed the examination process and have been granted by the patent office. The script differentiates between issued patents and pending patent applications, noting that only issued patents can be infringed upon, and that they are a key part of the prior art that must be considered for patentability.

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