Can you patent an idea?

If the idea is a new product or process that has practical advantages, we call it an invention and there’s a good chance that it’s patentable.

To qualify for a patent, an invention must be novel (strictly new) and have an inventive step. An inventive step requires ‘non-obviousness’, that is something more than a routine development in the technology or a plain and logical extension of what is already publicly known. Synergies and surprising and unexpected results are indicators of an inventive step.

Beyond novelty and an inventive step, the invention must also be inherently patentable. This is a notoriously difficult topic. It attempts to separate patentable technical innovation from inherently unpatentable abstract ideas, business innovation, artistic works and mere discoveries.

Fortunately, many new ideas a far removed from this difficulty. Typically, three dimensional products (and physical processes) that offer some technical benefit clearly meet the inherently-patentable standard.

There has been much controversy regarding the patentability of certain classes of software whereas

generally speaking, software that implements a new technical solution to a technical problem remains uncontroversially patentable,

e.g. the New Zealand Patent Office gives the example of a patentable software upgrade to a washing machine (here).

Likewise, Abstract ideas such as a mathematical algorithm without practical application aren’t patentable, but a new machine that uses the algorithm for some practical purpose could be.

Inherent patentability is a complex topic that cannot be reduced to a simple definition. In Australia, an invention must be a ‘manner of manufacture’. The concept is rooted in 400 years of case law that indicate that the wording ‘manner of manufacture’ is merely a ‘general title’ for the principals developed in the case law.

Fortunately, for the atypical cases that might not be inherently patentable, the Australian, US and European Patent Offices provide many pages of guidance on the topic (here, here and here) and we’re always happy to chat. Contact Us.

Usually, it’s best to file as soon as you are confident that the invention works and there is a business case for patenting.

There’s no need for a prototype, but if you’re at a very early stage and there are still real technical challenges to make the invention work, it might be too early to file an effective patent application.

For a patent application to be effective it must include ‘enabling detail’ that teaches the ‘ordinary non-inventive worker’ in the relevant industry how to make and use the invention without undue burden.

Filing an effective patent application sets the ‘priority date’ for the invention. This is the key date used to assess whether your invention satisfies the novelty and inventive step tests. Filing sooner to set an earlier priority date improves the prospects of passing those tests: if you defer filing a patent application whilst you make refinements you might miss out if similar technology is published in the meantime.

A provisional patent application can be filed to set a priority date for the initial detail and open a 12-month window to file a non-provisional patent application that captures, and sets a priority date for, any technical refinements in the meantime. More on How to patent an idea?

 

Further reading:

-> Patents

-> Design registration

-> Intellectual property