Thursday, February 25, 2016

Sanity Check: Is My Idea Patentable?

Sometimes Entrepreneurs demand to know whether their idea is patentable.  Frankly, yes or no answers do not exist for this deceptively simple question. 

First, obtaining a patent is a legal process fraught with uncertainty.  The most obvious consideration lies with how closely the prior art mirrors the idea.  The real question, though, is does the possible (not guaranteed) return on investment for the idea justify investing in a patent application despite the risk of not obtaining a patent.  

Furthermore, the success (or failure) of an application rests on forces beyond the control of the Patent Attorney.  For instance, the Patent Office might assign the application to an Examiner who won’t give an inch.  The Author had one Examiner admit that there “was nothing like [a particular invention] out there.”  But, the Examiner also refused to agree to any claim that described the idea.  In this case, the Author performed a legal sleight of hand that resulted in a patent anyway. 

In other situations, the Examiner might be dead wrong.  This author had another Examiner insist that a product of reaction found in the prior art could once again react (in the same way as the feed chemicals) to form the claimed chemical.  The Examiner’s assertion was chemically impossible.  Yet prevailing against her insistence would have cost tens of thousands of dollars.

That is not to say that such things will always happen.  Indeed, this Author has successfully prosecuted applications that the client insisted on pursuing despite warnings of the high risks of failure involved.  In these cases, the potential returns justified the expensive arguments that ultimately prevailed.  

Thus, there is no easy, reliable answer (or sanity check) as to whether most ideas are patentable.  And that is why Entrepreneurs rarely obtain a yes or no answer to that question.  

We at the Villhard Patent Group would welcome an opportunity to help frame the chances that you might prevail at the Patent Office.  You can obtain more information about us at or you can call us at 512-897-0399. 

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