Do I need a patent?
If you already know you want a patent, then feel free to skip this page. But if you’ve found your way to this website, then it is likely that one of the main questions you’re asking yourself is “Do I actually need a patent?” Most people fall into one of two camps when it comes to their thoughts on whether they need a patent:
“I definitely need one. I’ve heard that if I don’t get a patent, a big company will come steal my idea and there will be nothing I can do about it.”
or
“I definitely don’t need one. I’ve heard they’re a waste of money, and I don’t want to make another lawyer rich.” If your idea relates to software, then you’re probably also thinking (in fact, this is probably your overarching thought): “Besides, I’ve heard that you can’t patent software, so why even bother?”
Neither of these viewpoints is necessarily wrong. Unfortunately, however, neither is necessarily right. As with everything in the world of legal issues, the answer to this question varies from situation to situation, and it depends on your specific facts. This is something to discuss with a qualified patent attorney.
The first thing to consider is whether your invention is actually new. You can only get a patent for new inventions – so if it’s already out there in the world, you won’t be able to get a patent. If you haven’t done so already, you should spend some time searching the internet to see if your idea is already out there. A good starting point is your favorite search engine – just try to find something on the internet that is similar to (or the same as) your idea. This could take a decent amount of searching, as you learn additional search terms and refine what you’re searching for. It’s worthwhile to spend some time on this. In other words, don’t simply run 1 search, glance at the first result, and say “Yep, I’m good.”
After searching the internet, it would be a good idea to narrow your search to existing patents and patent application. Luckily, Google has a search page specifically dedicate to searching patents, called Google Patents. Another good patent search tool is Free Patents Online.
If you’ve spent some time searching and have not found anything, it doesn’t necessarily mean that your idea is new, but it at least lets you know that you couldn’t immediately find anything that is the same.
With that in mind, let’s go back to the question: Do I need a patent?
Let’s start with the first camp (i.e., that you “definitely” need a patent). There is no doubt that certain situations are well-suited to filing a patent application. Generally, patents make the most sense when you have a tangible product that physically accomplishes something and can be easily copied. As an example, imagine that you have come up with a new type of bottle opener that opens bottles way better than all current bottle openers, and it is small and made out of one piece of plastic. This would be a good candidate for a patent because anybody with access to a 3D printer could easily print an exact copy of your bottle opener and start selling them for cheaper than you sell yours. A patent would help you prevent this type of situation.
Now let’s look at the second camp (i.e., that you “definitely don’t” need a patent). There is no doubt that certain situations are not well-suited to filing a patent application. If your idea clearly already exists in the marketplace, then filing a patent application is probably going to end up being a waste of your money.
Now let’s talk about “software.” So much digital ink has been spilled on the internet about whether you can patent software or not. There are a couple different issues tangled up in this catch-all discussion, and many people simply talk about the issue in generalities without understanding what they’re saying and without appreciating some of the nuance that exists in this area. If your invention is not related to software, then you can skip this discussion. But if you’re trying to build a startup with a mobile app (as many people are doing these days), then this discussion is much more relevant to you. Go check out this page, where we discuss this issue in more detail.
Once you’ve decided that you may want to pursue a patent, you have to decide what type of patent application to file. As discussed here, you can file either a provisional patent application or a non-provisional patent application.