Protecting an Idea: Can Ideas Be Patented or Protected?

Protecting an Idea: Can Ideas Be Patented or Protected?
Many people ask: can ideas be patented? The short answer is no. Unfortunately, despite what you may have heard from late night television commercials, there is no effective way to protect an idea with any form of intellectual property protection. Copyrights protect expression and creativity, not innovation. Patents protect inventions. Neither copyrights or patents protect ideas. This is not to suggest that ideas are not valuable, but they are not valuable in the same way or sense that pop culture has led many to believe.
It is, of course, axiomatic that an idea is an essential first step toward any invention. Nothing can or will happen without an idea, so in one sense ideas are a critical, and valuable, piece to the overall innovation equation. In and of themselves, however, ideas are not monetarily valuable. Without some identifiable manifestation of the idea there can be no intellectual property protection obtained and no exclusive rights will flow.
Without any protection, whether actual (i.e., in the form of an issued patent) or perceived (i.e., in the form of a pending patent application that defines the invention and could if pursued mature into an issued patent), ideas are free. Absent patent protection or a confidentiality agreement that accepts an obligation not use or disclose an idea – which are extremely difficult if not impossible to obtain with only an idea – the idea can be taken and used without payment.
While confidentiality agreements, or non-disclosure agreements as they are sometimes called, are absolutely essential for inventors in the early stages to protect their idea, the problem is they are only going to provide protection with respect to those who have accepted the confidentiality obligation. And if and when the confidentiality obligation is broken you only have a claim for breach of contract (i.e., breach of the confidentiality agreement), but the trade secret that was your invention will no longer be a secret. So, before you would be tempted to believe there is a broad based way to protect an idea without it maturing into an invention that can be patented, or even an invention without a patent, you need to consider spend time to understand the purposes and limitations of confidentiality agreements (see here and here) and trade secrets (see here, here and here).
This does not mean that inventors, or those who aspire to become inventors, should give up at the idea stage when the realization is made that there is only an idea present without some identifiable manifestation, but it does mean that more work is necessary in order to flesh out the idea and bring it across the idea innovation boundary. The goal is to get to the point where the idea it is concrete enough to be more than what the law would call a mere idea.
The moral of the story is that mere ideas cannot be protected, so inventors need to think in terms of an invention. Inventions can be patented. Ideas cannot be patented. So, you do not have an idea, you have an invention, or you will have an invention if you continue on your journey and don’t give up. You just need to get from the idea that inevitably begins the process to an invention, which is the culmination of the innovation part of the journey. And once the culmination of the innovation journey is realized then it becomes time to file a patent application.
As one contemplates moving from idea to invention to patent and ultimately, hopefully riches, a dose of reality is in order. First, stop thinking you will get rich by selling your ideato industry and sitting back and collecting royalty checks for doing nothing. That may be what late-night TV commercials want you to believe, but it is not reality. If inventing were as easy as thinking up an idea and riches would follow practically everyone would be a rich inventor! Ideas are a dime a dozen. They are valuable because they are a necessary part of the innovation journey, but it is not the idea in and of itself that creates monetary value, rather the valuable proposition inventors provide those interested in buying or licensing invention rights is found in the solution.
Inventors make money by identifying a problem, formulating an idea about how that problem can be solved, and then creating a solution. For example, the observation that using a snow shovel to clear snow is a back-breaking endeavor is obvious to anyone who has ever shoveled snow. The desire or belief that there has to be a better way to remove snow from a residential driveway is likewise not revolutionary, or particularly valuable. The idea that a mechanized solution would make the process faster, easier and cause fewer muscle injuries is a good one, but without the offer of any kind of solution the mere idea that a mechanized solution would be fantastic doesn’t create any value. But if you were the first person actually able to build a mechanized solution that would throw (or blow) the snow off a driveway you would have an invention that could be patented, and one that could be quite valuable in the hands of the right licensee. Perhaps royalty checks would roll in, but would it be for doing nothing? That mailbox income that might show up every quarter for years is attributed to the work done to create a valuable solution to the problem. The idea matured into an identifiable manifestation that was valuable in the hands of another. An inventor’s dream, but hardly money for doing nothing, although the inventor’s work is frontloaded in this monetization scenario.
Figure 1 from U.S. Patent No. 3,921,315
Essentially, what inventors need to do is identify a problem, formulate the idea and then work toward finding a solution. The above example of a snow blower is an illustration of a common inventive idea becoming a reality by identifying a task that can be made easier with a new device. The snow blower pictured here was patented on November 25, 1975 and is titled Snow Blower Safety Chute.The improvement here is with respect to element 22, the safety chute. The patent explains that despite manufacturer warnings people injure themselves every year because when they attempt to clean out the compacted snow from the discharge chute, they do not stop the engine. Thus, the inventor’s desire was to prevent injuries because a certain number of people – perhaps many – won’t follow safety directions despite being warned.
The idea was to create a chute that could be safely cleared while the engine was still running. The solution was the use of prongs extending downward into a portion of the chute, which could be manipulated by the user to loosen the packed snow safely while the engine was still running. The valuable proposition is the solution to the problem, not the identification of the problem, which the manufacturers knew about because warnings not to clear the discharge chute with the engine running were included.
Many people will come up with ideas, you’ve no doubt heard many friends and family talk about their invention ideas. I need a tool that does X, why hasn’t someone thought of Y, this would be better if only it did Z. For most people that is as far as they get, but inventors will go farther, but sometimes will still find themselves getting stuck in the idea phase. If that happens don’t just throw in the towel. Many good many inventors will become stuck in the idea phase from time to time, so if that is where you are you are not alone.
First, it may surprise you to learn that you just think you are stuck in the idea phase and you might actually have an invention without even knowing it yet. United States patent laws do not require you to have a prototype in order to apply for a patent, all that is required is that you be able to describe the invention so that others could make and use it. So, while you do need to have some kind of identifiable manifestation, you can start by proving your concept on paper.
With some guidance to coax out your idea you might actually have more than you think. For example, with the help of someone familiar with CAD and can help you create detailed 2D drawings and 3D renderings of what you are thinking about, you might soon realize you have an invention and not a mere idea. For example, Enhance Product Developmentworks with inventors to help them turn their inventions into reality, but they also work with those who are on the path toward becoming inventors and who need help at the ideation or concept stage.
Many people will have great ideas, but what separates those who can turn their ideas into money from those who cannot is a strategy to define the idea with enough specificity so that it can become an asset that can ultimately be protected. To profit from your idea you must package it so that it is something the law will recognize as protectable.
If you are having difficulty moving out of the idea phase and into the invention phase take a look at Moving From Idea to Patent and About the Invention Process. These articles will provide some insights and help you formulate a plan for reaching the invention stage, which is where you want to be in order to commercialize and monetize your ideas. The Invent + Patent System™can also help. The Invent + Patent System™is an innovative approach to the patent process that assists inventors in drafting their own provisional patent application. The Invent + Patent System™ has also been effectively used to coax inventors into formulating their ideas in a more tangible way so that the concepts move from a pure idea into something descriptive enough to be legally viewed as an invention.
I also encourage all inventors and would-be inventors to read One Simple Idea: Turn Your Dreams into a Licensing Goldmine, which is an excellent book written by Stephen Key of Invent Right. Although the title may sound like it contradicts some I’ve written above, Key is also the author of Sell Your Ideas With or Without a Patent, which is another a must read. Key preaches filing provisional patent applications to create perceived ownership (a term I’ve adopted from him). I’ve long been a fan of provisional patent applications, which have only become more important now that the U.S. has become a first inventor to file system.
First to file has to be interpreted as file first, which makes filing provisional patent applications quickly after an idea has matured into an invention is absolutely critical. Of course, a poorly prepared and hastily filed provisional patent application will provide little or no benefit. For more information on provisional patent applications please see:
Gene Quinn
Gene Quinn is a patent attorney and a leading commentator on patent law and innovation policy. Mr. Quinn has twice been named one of the top 50 most influential people [...see more]
Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.
Join the Discussion
8 comments so far.
Ben
February 17, 2019 05:33 pm
“Idea” can be understood as ‘a basic element of thought that can be either visual, concrete or abstract’. Jonson, B (2005) Design Studies Vol 26 No. 6 p. 613
Dr. Detroit
December 13, 2018 10:47 am
Step back @5, did you just learn two new words today.
step back
November 21, 2018 03:25 am
Stuart @5
This post is “directed to” patent law.
Your question raises at least two aspects of copyright law: the idea/expression dichotomy question and the modicum of creativity question. You might want to search re those legal issues using the given terms.
Stuart Fox
November 20, 2018 08:18 pm
I am not certain what George is differing with – the subject was “Can Ideas Be Patented or Protected?”
Its well established what can and cannot be protected by a patent or other rights – for how long and by whom (+ for that matter, how a patent application should be “manifested”).
….. and since George mentioned copyright, (and numerous ‘etc’s’) another question might be >
Can Ideas or Inventions be Protected by Copyright? …. you might be surprised at this >
‘lucky break wishbone’ http://www.luckybreakwishbone.com/docs/JudgeUpholds.pdf
I would be interested to see comments on that from Gene Quinn and others.
Stuart Fox – inventor
George
November 20, 2018 04:53 pm
@ step back
“It occurred to me that I have no idea what the official definition of idea is, let alone “abstract idea” or “merely abstract idea””
How about ‘any thought that is NOT patentable’! How’s THAT for a circular definition?! LOL
More seriously, there still isn’t an easy one everyone can agree on or which a computer alone could work with! We’ll have to get there at some point in time. Perhaps Gene can suggest some good academic or legal writings about that problem (or a definition that seems very concise and comprehensive). Seems to be very difficult to nail down – but the SCOTUS doesn’t seem to worry about that too much. Whatever passes the ‘duck test’ FOR THEM, is what counts at any period of time (but it also changes a lot over time). Anything under the sun thought of by humans may qualify as an ‘idea’, or even a ‘useful idea’, while still not qualifying for a patent. Ideas can be good, bad, or somewhere in between, but can’t be prevented from being published and shared, regardless. If your purpose is the dissemination of good ideas (and getting credit for them), then don’t worry so much about patents. You can also ‘Just Do It – First’, even though that’s riskier. But, remember, no one steals ideas OR inventions that don’t make money! Even the Chinese don’t want those!
George
November 20, 2018 01:57 pm
“ideas are free” – G.Q.
I respectfully beg to differ. Ideas that are not credited to their ‘original’ source, constitute ‘plagiarism’ and/or copyright infringement (such as the plot of movie). Using those other means of asserting ownership rights, can be just as powerful and effective as asserting patent rights, particularly if the idea being misappropriated is particularly significant, revolutionary, or worth a great deal of money! For instance the ‘Theory of Relativity’ was one such ‘abstract idea’ that could never have been patented, yet it sure made a huge difference to the fame and career of one Albert Einstein (going from Swiss patent examiner to esteemed professor allowed to do anything he wanted for the rest of his life and being paid to do it)! How much was having that one ‘idea’ worth it to Einstein? A whole lot! Imagine if others had tried to claim credit for that ‘simple but abstract idea’ or claimed they knew more about it than Einstein?! Who would have ever even attempted to do that?! In Einstein’s case that general and VERY abstract ‘idea’ itself was far more valuable than any weak patent could ever have been. And, what about a book that gets made into a blockbuster movie? That’s free to take and use? Don’t think so. Have to pay the author ‘extra’ to do that, even if the author is already being paid for the publication of the book. Want to use what’s in it for ‘other’ commercial purposes? – you have to pay (or at least get permission to do that). Same goes with plagiarism. If you didn’t get permission to use someone else’s work and claim it as your (i.e., the work of ‘ghost writers’), then you will get into to big trouble that could easily cost just as much as patent infringement would! Also, proven plagiarism can not only cost lots of money and cause someone great shame, but it can also cost a person(s) their job and even careers, and in so doing ruin their life – forever. So, I treat any idea that is not common (i.e. any ‘new’ idea) as proprietary to the person who came up with it and make sure that it is deserving of proper attribution, quotation, or citation, including in IDS’s filed with applications for patents. The later seems to be particularly distasteful to many inventors today, who would seem to prefer not to citing ANY prior art, whatsoever (despite that not being kosher with the PTO)! No worry, the Examiner will find those prior art references anyway (despite your best efforts to suppress them). Therefore my position is that your ‘ideas’ are NOT FREE, unless you sit by and do nothing if someone steals them! Copyright and anti-plagiarism protections are still your friend (just that patent attorneys don’t benefit as much from helping you assert those). What’s that saying? . . . “If all you have is a hammer – everything looks like a nail (or there’s just nothing there to hit with a hammer)”. I prefer having a ‘full toolkit’ at my disposal when it comes to protecting IP and a person’s reputation and life’s work. Your ‘ideas’ and creative works belong to you, and can be valuable even if not patentable (unless they’re not new and considered common knowledge)! Attorneys do people a great disservice if they tell people otherwise. Ideas can be worth a LOT of money, in and of themselves, even if not patentable. People have become multi-millionaires, even without having any patents issued to them! In fact, the whole idea of becoming a ‘brand name’, often involves being first on the block with a new idea, even without any patents! Basically how Google, Facebook and Amazon started – with just an idea (no patents even pending at the time)!
Stuart Fox
November 18, 2018 11:11 pm
Hi Gene – Thanks for another interesting article – I am a great fan of yours and agree with virtually everything written in the article and with respect in this instance I am sorry to say I am disappointed with the way you put some of it.
I agree with you since I know the field – ‘ often reading how others explain the issues in an effort to improve my clarification to inventors, but putting ourselves in the position of a so called newbie, which this article is directed at – I would wonder amongst others, about points such as “identifiable manifestation” – “innovation boundary” – “protection” and last but not least “a confidentiality agreement.”
Whilst many in the industry – including government IP offices – promote them, I include the latter due to the difficulty in traceably proving breach of confidentiality > filing a good ‘provisional application’ at least is really the only way to be sure of having any chance of establishing priority.
Finally – I often suggest to inventors (if that is the commercialization rout they are pursuing) that they should consider putting themselves in the shoes of a potential licensee > let them know you are talking to others and endeavour to convince them that THEY can profit from your invention – AND HOW – so they should ‘talk turkey’.
Stuart Fox
step back
November 18, 2018 11:10 pm
It occurred to me that I have no idea what the official definition of idea is, let alone “abstract idea” or “merely abstract idea”:
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