Return on Innovation®


Unlocking the Mystery: How to Determine if Your Idea is Patentable

May 8, 2024

When people find out I’m a patent attorney, the question “hey, I have an idea, can I patent this?” is usually the next thing they ask.  Sadly, I end up having to give this general question the old law school response of “It depends.”  The devil, as they say, is in the details.

Details are critical to every patent application, so it’s best to articulate those at the earliest possible time – like when a potential client first asks you “can I patent this?”  If the client persists with the position that they “have an idea” that they want to patent, the answer is almost invariably “no”.  You simply cannot patent mere “ideas”.

But when do ideas move into the realm of becoming actual inventions?  Luckily, we patent attorneys DO have an answer for that!  “Ideas” become potential “inventions” when they are reduced to practice.  This can be done in a few ways, the two overarching types of which are (1) actual and (2) constructive. 

Actual reduction to practice is simple and straightforward:  This means that you (or someone at your behest and direction) have built and can use your invention.  If you have done this or hired someone to do this and it is now usable, then you have actually reduced your invention to practice.

Constructive reduction to practice is also easily ascertained in the legal world by the filing of a patent application with the United States Patent and Trademark Office.  Constructive reduction to practice occurs when a patent application includes enough details so that someone skilled in the art (e.g., someone who is an expert or is trained in the field to which your invention is directed) is enabled just by the patent application itself, to be able to build and use the invention.  Therefore, it is very important for that patent application to include all relevant details such as how to build your invention, how your invention functions, and what your invention accomplishes or puts out as a finished product.  To that end, the full patent application almost always includes a number of “drawings”, which is USPTO parlance for images (usually computer-generated for clarity) that illustrate the features, modifications, and use(s) of the invention.  These drawings are also a necessary and critical component of reducing your idea to practice.

It may seem as though there is a grey area between the idea stage of the proceedings and having enough details of your invention formulated that you are able to submit a patent application for your invention.  This is usually the time period during which a successful inventor is working with an experienced patent attorney to finalize the details and “put meat on the bones” of his or her idea to turn that piece of intellectual property from a mere “idea” into an “invention”.  The idea will officially cross the threshold from “theoretical” to “(constructively) reduced to practice” when the finished product patent application is filed with the USPTO.

If you have not yet reduced your idea to practice in one of the ways as described above, then unfortunately “ideas” by themselves are not eligible for patent protection.  The best protection for those theoretical ideas is a very real and ironclad non-disclosure agreement, or NDA.  A good lawyer can create a personalized or customized NDA for your use that will protect your ideas from being hijacked and/or misused by the person to whom you are disclosing those ideas in your course of business.  If you’re worried about your “secrets getting out”, then an NDA is your best bet for protecting your “ideas” by themselves – with the goal being that, in time, you will flush out the details of your idea and cross the finish line over to having a patentable invention.