Top 5 Reasons an Inventor Won’t Get a Patent

At Venjuris, we work on dozens of patent projects every year. Unfortunately, not everyone who wants a patent can get one. This week, I asked the Venjuris attorneys who work on patents to share the top reasons we have to tell clients that they are unlikely to obtain their desired patent.

DeMoulins Patented Hoodwink by Arallyn! from Flickr (Creative Commons License)

Their Invention Already Exists

This is by far, the most common reason why the rules say an inventor can’t have the patent that they want. The first rule for getting a patent in the U.S. is it can’t be something that existed prior to client’s “invention”, anywhere on the planet. If we determine that every aspect of their invention is already in existence (called the “prior art,”) we have the unfortunate task of informing our client that their brilliant idea was previously invented by someone else.

There may be times when most aspects of our client’s invention already exists, and we have to let our client decide if it is worth it to file a patent for the narrow aspects of their invention that are not in the prior art.

Their Invention is Obvious

The second rule for getting a patent in the U.S. is the invention cannot be a new but obvious variation of an existing invention. If a client’s idea is too similar to something in the prior art, or combination of prior art, it may not be patentable.

Copyright, Patent, or Trademark? by BusinessSarah from Flickr (Creative Commons License)

The Idea Isn’t Patentable

The U.S. Patent and Trademark Office (USPTO) has rules about what can/cannot be patented. On the list of things that are not eligible for a patent are abstract ideas, laws of nature, and natural phenomena. If a client comes to us wanting a patent for a non-patentable idea, we may have to decline the project. (However, the line between an abstract idea and a patentable invention is still fairly blurry in light of the U.S. Supreme Court decision in Alice Corp. v. CLS Bank International, 573 U.S. __, 134 S. Ct. 2347 (2014)).

Additionally, some people are easily confused about when to use patents, trade secrets, copyrights, and/or trademarks to protect their ideas. Our client may not have a patentable idea, but we may have other options we can pursue.

4. They Waited Too Long to File

The USPTO has rules about how long a person can wait  to file their patent application. A person must file their patent application within one year of promoting, selling, publicizing, or otherwise publicly disclosing their invention. If an inventor waits one year and one day, or longer, to file their application, they are barred from filing a patent application for their invention.

When a client has an invention but is not ready to file the patent application, we can help them avoid inadvertently making a public disclosure and starting the one-year clock. This may include using non-disclosure agreements with anyone who works with or may be exposed to the invention.

5. Money

The other reason an inventor may choose not to file a patent application with the USPTO is because they can’t afford or don’t want to pay for a patent. It is not uncommon for the costs and fees to have a lawyer file a patent application and respond to communications from the USPTO to reach between $5,000 and $15,000, depending on the complexity of the invention.

If you are interested in obtaining a patent for your idea or invention, talk with an intellectual property attorney early to prevent making a misstep that could impede your ability to get a patent. If you need any help with your patents or other intellectual property, please send us a message. We have lawyers licensed in Arizona, Connecticut, and New York, and we can handle federal intellectual property matters in any U.S. state and assist with international matters. We would be happy to discuss your patent ideas and the expected fees based on your specific situation. For even more information, be sure to connect with us on Facebook.

Post written by social media attorney Ruth Carter and edited by patent attorney Joe Meaney.

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