Time frame
This is a complicated process that can take several years and requires the aid of patent lawyers.
Patentability requirements
- New: this means that not only is it an original idea, that doesn’t infringe existing patents, but that it also must not have been made publicly available anywhere in the world before and must instead be confidential.
- Inventive: The invention must include an “inventive step” that is non-obvious to a “person skilled in the art”.
- Either something that can be made and used, a technical process, or a method of doing something.
1. Creating an inventive step
This is the most critical element to creating a patentable product, and one that a lot of people struggle to understand. Any innovation must be non-obvious and more than just a combination of elements existing in other designs.
This is the key criteria used for granting patents in the UK and Europe. This requirement is intended to prevent IP from hindering routine iterative development. Instead, a feature must be a genuine technical advancement.
How (assessed by patent attorneys)
- Identify prior art: determine what is already established in your product area, you can do this by looking at what other products attempt to solve the same problem as yours or by searching for patents online (e.g. Google Patent) or by engaging a patent lawyer to search on your behalf.
- Determine the “Person Skilled in the Art”: a representation of what the average engineer in your field would know. It is used to consider how “obvious” your innovation is.
- Consider the Problem and Solution: Would a skilled person have found it obvious to overcome the problem your innovation is solving by combining aspects of the prior art?
2. Decide What you are patenting
You need to discuss with your Patent attorney which features of your design are patentable. You may also think of alternative variations of your solution that you wish to patent alongside.
If you have come up with multiple inventive solutions to the same problem, or have a couple of different variations of the product that you would like to sell, it can be worth protecting both.
Depending on the difference in the variations, and the types of patents you are aiming for, you may be able to combine some for a cheaper fee, or you may need entirely separate filings.
3. Documenting your innovation
To get protection you will need to be able to clearly explain your innovation with words and diagrams.
For patents to withstand legal challenges, they need to be written in a common format with specific legal language.
You will need a patent lawyer to draft the patent for you. They will write the words and file the patent, but first you need to explain it to them. You will need prototypes, computer models and/or engineering drawings, and patent drawings with specific requirements.
4. Decide where you are patenting
Different regions of the world have different patent systems. You need to decide which are relevant to you.
Generally, you will want to patent in your main sales areas, and possibly in your country of manufacture as well. This is a balance between budget and risk.
Each region will have its own systems with different amounts of compatibility. Patents can be staggered somewhat due to grace periods when filing internationally.
5. Keep it confidential
For your product to gain a patent, it needs to be kept secret before it is granted.
If your patentable feature was publicly disclosed in any way before the granting of the patent, you are essentially trying to patent something that is already prior art.
You will need to keep your development work confidential, use NDAs with investors, engineers, designers, etc. Avoid public disclosure until filed. Some countries also have grace periods.
Common Mistakes to Avoid
- A patent is a tool for business strategy: understand what you hope to gain from one and carefully weigh it against the costs and risks.
- Patent too early: whilst it is easy to see the risks of patenting too late, patenting too early also comes with risks. If you patent before the design is sufficiently developed, you may find that the product does not work as hoped or has changed by launch.
- Patenting makes the idea public, so competitors will study your patent and plan around it.