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.