One of the most common myths about patents is that it’s about protecting our ideas. Patents are about inventions, not ideas. In fact, the surest way to annoy a patent lawyer is to start talking about patenting ideas instead of inventions!
Inventions versus Ideas
So what counts as an invention?
First of all, inventions are concrete. Unlike ideas and aspirations, inventions are specific things that people can actually do. So you can’t patent something like world peace because even though it is extremely valuable to humanity, it’s not something with a clear action plan that people can act on. You also can’t patent things like time travel or flying carpets because even though these are very clear ideas, nobody has figured out how to make them work (yet!).
Inventions also can’t be naturally occurring, as these are more like discoveries of things that already exist, rather than inventing something new. For example, you can’t patent a rainbow since it already happens in nature. However, you can patent the design of a machine that creates rainbows, as long as it actually works and nobody else has done it the same way before.
Patentable things include processes for doing something, products that are made by people rather than by nature (like hats and cupcakes versus a rainbow in the sky), machines made up of moving parts and chemical mixtures. You can also patent decorative designs under a special type of patent called design patents or even plants. We’ll talk about the different types of patents--utility, design and plant patents-- later in this post.
Once the idea turns into a concrete invention, there are a few more boxes you need to check before it qualifies for a patent.
Inventions Must Be Novel and Useful
Okay, now that you have your idea in the form of an actual invention, you have to check whether it is new, non-obvious and useful according to the patent office.
New: An invention is new if nobody else has already come up with it before. To prove that an invention is new, the patent office searches for prior art, which are similar inventions that already exist. If none of the prior art matches the invention exactly, then that’s proof that the invention is new.
For example, umbrella rakes can be patented as long as nobody has made them before. Even though umbrellas and rakes exist separately, putting them together in this way is a new improvement and different enough to count as a new invention.
Sounds simple right? In reality, it’s actually pretty complicated. To dig deeper into what counts as prior art and how patent examiners actually use it, visit our Prior Art page.
Non-obvious: This one is a bit tricky. Officially the definition of “non-obvious” is that someone skilled in the field of the invention would find it to be surprising. However, who is to say what is surprising and what is not? And what does “skilled” mean? It’s all very unclear and as a result, the patent examiner’s test for non-obvious often goes back to whether there is really similar prior art.
That said, someone else cannot come along and patent blue umbrella rakes, for example, because only changing the color of the invention would be considered too obvious by anyone’s standards.
Useful: It’s pretty easy to pass the useful test. The patent office considers anything that works to be useful, regardless of how important or unimportant the invention might seem. As long as the invention does not defy the laws of physics and works the way the inventor says, the invention passes as useful.
In our example, whether or not an umbrella rake makes our lives better doesn’t matter to the patent office as long as the umbrella rake works as intended: for keeping us try in the rain and for moving around leaves on the ground. However, if someone tried to patent an umbrella rake made out of soap, it would not be useful because the umbrella rake would fall apart in the rain and not work anymore as an umbrella!
In the special case of design patents which cover the decorative parts of an invention, the invention does not need to be useful since decoration, by definition, does not have a function. In fact, if the invention is both decorative and functional, you would have to apply separately for a design patent and a utility patent to cover both the decorative and functional parts!
Utility, Design or Plant
Different categories of patents come with different legal rights. Depending on what your invention is, you can get a utility, design or plant patent.
Utility patents are the most common type of patent and it covers any invention that works to produce a useful result. As you’ve just read, “useful” is used pretty loosely by the patent office to mean anything that works as intended. These patents last up to 20 years from when the patent application is filed.
Design patents protect your invention’s unique appearance, like the shape and color. These patents can only last up to 15 years after the patent is issued.
Plant patents, the rarest kind of all, cover human-designed plants that are replicated without using seeds. These last 20 years from the filing date of the patent application.
What About Copyright?
There is a whole other universe of rights to creative works that we haven’t talked about yet, called copyright. Even though both patents and copyright give exclusive rights and attribution to a creator for producing something new, the laws surrounding them are totally different. You cannot patent a creative work if it should be covered by copyright instead and similarly you cannot copyright an invention. People often confuse patents from copyright so let’s see if we can clear this up!
Copyright covers expressive, cultural works of art like sculptures, illustrations, writings, music and dance. Creators automatically get copyright for free on their work as soon as it’s created, and these rights apply all over the world.
Patents cover the function and look of inventions and must be approved by the patent office, which typically takes years and costs tens of thousands of dollars in legal fees. They also only count in the countries where the patent is registered, and you have to pay separate fees to register a patent in each country.
Just like an invention might include both design and utility patents, a creative work can be covered under both patents and copyright.
Take the example of a painting. You can’t patent the look of the painting because that would be covered under copyright. However, the technique of applying colorful paint to a surface with a brush would be covered under a patent because it’s a process. Of course, you cannot actually patent painting because so many other people have done it before. There’s tons of prior art so it’s not new!
Very importantly, just as you cannot patent a type of work that is covered under copyright, you also cannot apply copyright licenses to a patent or apply patent licenses to copyright.
For example, many artists make their works free for public use under Creative Commons licenses. However, even If you own a patent and would like to share it openly, you cannot use a Creative Commons license to share rights to your invention with the public because the Creative Commons license only applies to copyright, not patents.
So there you have it! But before you go around trying to patent every possible invention, there are many reasons why people choose to patent or choose not to patent an invention. Two of the biggest factors are time and cost. It typically takes several years and between $10,000 and $30,000 in legal fees to get a patent. Ask yourself, is this worth it?
Author: Jie Qi (MIT Media Lab)
External Reference Links:
Related Reading by Patent Pandas: