This past week I was speaking at a panel discussion on entrepreneurship here in Charlotte, NC and one of the questions I received was "How do I know if my idea is new and can be patented? " Sadly I did not have a good or easy answer to this. Not because I didn't know the answers but rather it was a very complicated answer. The standard and easy response that you will get from a patent attorney to this question will probably be "hire our firm to do a patentability or prior art search". In my opinion this is not the proper answer.
I have done my own patentability searches and prior art searches for people wondering if their idea was new or "novel". In fact, I used to work at the third largest patent law firm in the country and I helped some of the partners put together some of these expensive patentability searches for large international clients. I have also paid other law firms and patent attorneys $1000s to do patentability searchers for me and my university where I work. In almost every case there were key articles or other patents which were missed. This means that despite our hard efforts and some very smart people using very expensive searching tools, its nearly impossible to figure out if your idea is truly new or novel. Chances are that there is someone somewhere around the world who has invented the same thing or something very close to it as you. It's very hard to find that out, even with advanced searching technology.
So how do you truly know if your idea is new? The response I gave to this question is that you can't ever know for certain. If you do a good patent search and a search of google and other large information databases you can get a good feel for how new your invention is but there are no guarantees. Hopefully this search will give you enough information to justify your patent filing but I would never bet any money that your idea is truly new or novel on the fact that a patent search did not find any identical inventions.
The patent search before you file your patent is your first indication of how new your idea may be. The second test will come as you go through the patent prosecution process and the US Patent Office will do their own search. Usually their search will pick up a few things that your professional search missed. Most of the time you can argue with the patent examiner to defend your invention and tell them why your idea is different from the similar inventions that their search found.
The last and final test will be a "cease and desist" letter or a lawsuit saying that you are infringing on someone elses patent. This is often scary for people to hear but usually the good news is that if you are successful enough to get these types of letters than this usually means your new invention is doing well in the marketplace and you should have enough money to defend yourself.
I am sorry I don't have a good answer to this question but the fact is there is so much information out there and so many people doing so many things around the world its nearly impossible to know if your idea is new and novel. The best we can hope for is a good enough patent search upfront to help us draft our patent in a way that will get it allowed by the patent office. Nobody truly knows if there invention is new and novel until either the patent office certifies that it is with an issued patent and even then they may have missed something.
President - PatentFile, LLCBrad Fach has 17 years of experience writing and filing patent applications with the US Patent and Trademark Office. He has personally filed over 500 patents in all technical areas ranging from consumer products to software and biotechnology. Read more....
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