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When to Protect an Innovative Idea

“I have thought through and worked out the innovative concept in my mind. Can I patent it at this stage?” The inventor is typically in a dilemma as to when he/she should proceed to start the patenting process. The life cycle of converting an innovative idea into a product typically runs into many years. During which of these stages should one file for patent protection – when the inventive concept is firmed up, at a first level prototype, mature prototype, early product phase or in the maturity stage of the product lifecycle? Surprise of surprises, the timing for patenting is not determined by the stage of the product life cycle. It is dependent on when you plan to publicly disclose the innovative idea, or market the new product. With intense competitive product development occurring in some of the hot and well funded areas like software, electronics, nanotechnology and biotechnology, it is prudent to protect your idea at the earliest stage, possibly at the point when the innovative or inventive idea is conceptualized.

“Hitting is timing, pitching is upsetting timing,” said Warren Spahn, a famous American baseball pitcher. In every country of the world except the United States, the patent is awarded to the first to file. The US is the only country that grants a patent to the person who was the first to invent and this rule is scheduled to be changed shortly to bring the US in line with the first to file rule.

In many countries, the inventor loses the right to file a patent if the invention is publicly disclosed before the patent application is filed. Therefore, prudence dictates that an invention not be disclosed before an application for it has been filed in the patent office. Developed countries are exposed to developing technologies at an early stage of the technology. They can envision new applications of these technologies ahead of their counterparts from developing countries. Hence, it is to their advantage to patent an innovative idea, at the concept level, before their counterparts in developing countries.

“Can a patent application be filed for a prophetic invention, i.e., for an invention based only on an idea that has not been tried, tested, perfected, prototyped or reduced to practice?” The answer is: Yes. “Does the patent office require one to have a fully working or marketed product before filing a patent application?” The answer is: No. A new concept is patentable provided the concept is workable and the inventor discloses in the patent application how to make and use the invention. An invention comprises an inventive concept plus a reduction to practice of the inventive concept. The courts have held that filing a patent application based only on a workable, inventive idea is the equivalent of a reduction to practice. However, if the invention, on its face, is impossible or unworkable, the patent application will be rejected. When Thomas Edison invented and filed a patent application for the light bulb, he was nowhere close to a robust working light bulb!

In the United States a patent application can be filed within 1 year of a public disclosure of the invention. Under US patent laws there is also a provision to protect your idea by filing a provisional application. The provisional application must be followed up by the filing of a non-provisional application within one year from the date of filing the provisional application. Failure to do so will result in the applicant losing the claim to priority date of the earlier filed provisional application. The period of priority is limited to six months in case of industry design and trademarks. If the non-provisional application cannot be filed within 1 year of filing of the provisional application, the applicant may file for another provisional and get another priority span. However, in this case the original priority date no longer holds.

The time tested and safest route for a company that wishes to protect its innovative idea is to withhold commercialization or publishing details of the invention until a provisional or a non-provisional application is filed and a “patent pending” status is obtained for the innovative idea.

About the Author

Ash Tankha, US patent attorney, works with inventors to develop their ideas into patent application for worldwide filing and patenting. Contact Ash Tankha atash@ipprocurement.com or visit www.ipprocurement.com.

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