Patent an Idea?

Can you patent an idea? No.

Many potential inventors say to me “I have an idea I would like to patent” but what they do not understand is that the invention itself is patentable, not the idea. In order for an idea to become a patented invention, the inventor must be able to teach someone of ordinary skill in the art how to make and use the invention.

In 1966 Eugene Wesley “Gene” Roddenberry came up with the “idea” for the transporter. In the Star Trek television series Captain Kirk would use his communication device (which looked a lot like the cell phones of today) from a planet’s surface to order his engineer to “beam me up Scotty.

Could Roddenberry have applied for a patent in 1966 for the cell phone or a transporter? Not unless he could describe to someone skilled in the art how to make and use it.

The law doesn’t even require that you actually make it (“reduction to practice”) you just have to be able to describe how to make and use it. 35 U.S.C. 112 often referred to as the enablement clause reads

“The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same…”

§ 112 paragraph 1 requires nothing more than objective enablement. In fact, an inventor can “constructively” reduce an invention to practice, which is unique to patent law.

“The statute does not contain any express requirement that an invention must be reduced to practice before it can be patented. Neither the statutory definition of the term in § 100 nor the basic conditions for obtaining a patent set forth in § 101 make any mention of “reduction to practice.” Pfaff v. Wells Elecs., Inc., 525 U.S. 55, 60-61 (1999).

As Judge Pauline Newman as described, “[t]he inclusion of constructed examples in a patent application is an established method of providing the technical content needed to support the conceived scope of the invention” because “[u]nlike the rules for scientific publications, which require actual performance of every experimental detail, patent law and practice are directed to teaching the invention so that it can be practiced.” Hoffmann-LaRoche, Inc. v. Promega Corp., 323 F.3d 1354, 1377 MPEP § 608.01(p).

People often come to me with an idea of how some type of machine might help solve a problem. But when I ask “how do you make it?” they cannot describe the inner workings of the machine. I ask them to tell me how it works and they say “can’t we get someone like an engineer or an electrician to make it work?”  I reply “wouldn’t that engineer be the inventor?”

If we go back to 1969 and the wireless phone idea… just having the idea to transmit voice signal wirelessly wouldn’t be enough to get a patent. You would have to be able to describe it like George Sweigert of Euclid, Ohio did on June 10, 1969. Sweigert  is the man who is credited as the person who came up with the first cordless phone and was awarded US Patent Number 3,449,750 (.PDF). Download the patent to see the way he described how to make and use his invention.

The bottom line is that your new idea of a way to solve a known problem can only be patented if you can describe how to make and use it. You cannot  get a patent on the idea alone.