You have a groundbreaking invention—but how do you know if it’s truly innovative enough for a patent?
Are you 100% certain no one anywhere in the world has had the same idea and made it public in any way? I’ve had clients think they were that certain, only to find out the hard way they were wrong.
Why does it matter whether you’re the only one to have your amazing idea?
You Want Patentability and You DON’T Want to Infringe
Here’s what is required to obtain a patent AND be sure you’re not infringing on someone else’s patent:
- Novelty – It must be new, meaning no one has publicly disclosed the same idea before you also came up with it.
- Non-Obviousness – It can’t be an obvious improvement of an existing invention. This can be a bit subjective, but an example is trying to get a patent for a robotic cat when there is already a nearly identical robot dog or making a robot dog that barks also growl.
- Usefulness – It must have a real-world application, meaning it has to work. It can’t be an idea for something that’s impossible to make or do.
There are additional nuances, but those are the essential requirements.
How Do You Find Out if Your Invention is Sufficiently Innovative?
Like with trademarks, you search. For patents, you are presumed to know about the state of the art in the field of the invention. That means if someone anywhere in the world has a patent, published patent application, journal article, trade show exhibit, listing on Amazon, or any other public appearance or mention of something that could keep your invention from being considered innovative, it’s called “prior art,” you are presumed to know about it, and it can and will be used against you.
If you don’t want to risk being wrong about your invention being unique and innovative, having a professional patentability search done is a smart idea.
If you might not apply for a patent but want to be sure you’re not infringing on someone else’s patent, a freedom-to-operate search is a great idea.
Why a Patent Attorney Search is Worth It
- Comprehensive Patent Databases – The USPTO patent database and Google Patents are good starting points, but professional patent searches go beyond these.
- International Considerations – A patent search needs to cover global prior art, as international publications can impact your rights, as I mentioned previously.
- Legal Strategy – DIY searches might miss nuances that an experienced patent attorney would catch. Some online services provide surface-level searches, but they don’t analyze whether your idea is truly patentable or how to draft strong claims that withstand challenges. For example, LegalZoom only searches the USPTO database, and you know from what I’ve said earlier that isn’t nearly sufficient.
Hiring a patent attorney to conduct a professional search can make or break your application and save you from doing something almost guaranteed to get you accused of infringement. The upfront investment is far cheaper than discovering a competitor’s patent after you’ve already spent time and money developing your invention!
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