Can you patent an idea?
Can you patent an idea? Yes, but only if the idea is patent eligible subject matter, useful, novel, non-obvious, and a complete and proper patent application is filed and allowed; then, yes, you can patent an idea for an invention without having the actual invention. Patenting an idea is not a recommended best practice, but it is possible.
Actual reduction to practice is not required. In other words, you do not have to actually make the invention in order to be able to apply for and be allowed a patent. However, it must, in fact, be actually possible to make it. Thus, while actual reduction to practice is not required, constructive reduction to practice is required.
Constructive reduction to practice is required. In other words, when you are seeking to patent an idea you must be able to completely describe how to make and use the invention. The written description must include enough detail and instruction to teach a Person Having Ordinary Skill In The Art (PHOSITA) how to be able to make the idea. Of course, there can be new ways (means and/or methods) used to make the idea, but they cannot be speculative.
Prototypes are not required. Unless the invention is a perpetual motion machine prototypes are not part of a patent application. However, creating prototypes is a valuable and potentially very important activity. Development and engineering of prototypes frequently offers insights into the idea/invention that includes patentable subject matter.
What is required to patent an idea?
Can you patent an idea? Yes, technically, but the requirements to patent an idea are the exact same as the requirements to patent any invention. Essentially there are two things required to patent an idea. In order to apply for a patent for an idea, the idea must be patentable and it must be completely described in an application.
The idea must be patentable. There are four criteria for an idea to be patentable. First, it must be patent eligible subject matter. Second, it must be useful. Third, it must be novel. And, fourth, it must be non-obvious. Read more about what is patentable.
The idea must be completely described. The inventor must be able to describe the features and how it works so that the patent examiner will understand. Explaining how to make and use the idea is done in the written description.
Carson Patents highly recommends professional patent practitioner help. If the inventor is seeking professional patent help, they must to be able to explain the idea to a patent practitioner so that the patent practitioner understands and can then write and draw what is needed to claim the idea.
How to Patent an Idea
How to patent a new idea, is the same as how to patent any new invention. Carson Patents has five steps to patent. We recommend all inventor/applicants follow all five steps when seeking patent protection for any ideas and/or inventions.
Step 1: Prior Art Search
The best first step in any pursuit of a patent is the prior art search. When seeking to patent an idea the prior art search is critical. Knowing what else is out there in the world that is similar will provide a lot of insight into the present state of the art. Can you patent an idea? What is present in the prior art will tell you if can patent an idea.
The prior art search finds the ideas and inventions that are similar to the new idea. Read more about patent step one: the prior art search.
Step 2: Patentability Evaluation
The best second step in any pursuit of a patent is the patentability evaluation. Evaluation of the patentability of any new idea or invention is best left to a patent agent or patent attorney. Can you patent an idea? A patentability study is necessary to determine whether you can.
For United States (U.S.) patent applications there are four criteria to determine patentability. The four criteria under U.S. law are 1. patent eligible subject matter, 2. usefulness, 3. novelty, and 4. non-obviousness. These four patentability criteria are the same for all U.S. patent applications. Read more about what is patentable in the U.S.
For International Patent Cooperation Treaty (PCT) applications there are three criteria for patentability. Under the International law, the three criteria for patentability are 1. novelty, 2. inventive step, and 3. industrial applicability. Read more about the International PCT patent application.
Step 3: Application Writing
Can you patent an idea? Yes, technically, but writing the patent application may be difficult. The best third step in any pursuit of a patent is patent application writing. When it comes to patenting an idea, this may be the most difficult step to accomplish. Constructive reduction to practice with engineered explanations regarding how to make and use the invented idea is required. Sufficient description and drawings or figures to show a Person Having Ordinary Skill In The Art (PHOSITA) how to make and use the invented idea is required. Read more about patent application writing.
When seeking to patent an idea, getting the patent application written and getting the figures drawn is really no different than for any other patent application. However, we have only the constructive (created) reduction to practice and the working knowledge of a PHOSITA to work with when writing the detailed description.
The written description of an idea patent must enable a PHOSITA to make and use the idea. In other words, there cannot be any guesses or speculation about how to make the idea or how to fully enable the features and functions claimed.
Carson Patents does not recommend writing and filing patents for ideas alone that have not been or are not in development to be actually made and used (reduced to practice). While it is possible to write and file a patent application for an idea, it is usually much more expensive because of the added time needed for the patent practitioner to effectively write a complete and proper patent application.
Step 4: Application Filing
Can you patent an idea? Yes, technically, but a compete and proper application must be submitted. The best fourth step in any pursuit of a patent is patent application filing. This step is the same for all patent applications, both invention and idea patents. Once the application is written it is submitted to the patent office. After patent application filing is completed properly, the patent office will begin the patenting process. Read more about patent application filing.
Note that provisional patent applications alone cannot result in a patent. Provisional patent applications require the later filed non-provisional (regular) patent application to remain pending and be examined for potential allowance as a patent.
Step 5: Patent Prosecution
Can you patent an idea? Yes, technically, and we find out in the last step, patent protection. The best fifth, and last step, in any pursuit of a patent is patent prosecution. This is where the decision about whether or not your idea (or invention) will actually get a patent is made. A patent examiner will review and evaluate the claims and correspond in writing. Responding to correspondence from the patent office regarding a patent application for an idea or invention is patent prosecution. During patent prosecution we work to show the examiner that the submitted claims can be allowed a patent. Read more about patent application prosecution.
Online Patent Help Available
Can you patent an idea? Yes, technically … Legal Advice: Consult a United States Patent and Trademark Office (USPTO) Registered Patent Agent or a USPTO Registered Patent Attorney for advice regarding the recommend best next steps needed to protect your idea or invention. Read about patent confidentiality.
Where U.S. and International patents are filed: