Protecting an Idea: Can Ideas Be Patented or Protected? (2023)

Many people ask:can ideas be patented? The short answer is no. Unfortunately, despite what you may have heard from late night television commercials, there is no effective way to protect an idea with any form of intellectual property protection. Copyrights protect expression and creativity, not innovation. Patents protect inventions. Neither copyrights or patents protect ideas. This is not to suggest that ideas are not valuable, but they are not valuable in the same way or sense that pop culture has led many to believe.

It is, of course, axiomatic that an idea is an essential first step toward any invention. Nothing can or will happen without an idea, so in one sense ideas are a critical, and valuable, piece to the overall innovation equation. In and of themselves, however, ideas are not monetarily valuable. Without some identifiable manifestation of the idea there can be no intellectual property protection obtained and no exclusive rights will flow.

Without any protection, whether actual (i.e., in the form of an issued patent) or perceived (i.e., in the form of a pending patent application that defines the invention and could if pursued mature into an issued patent), ideas are free. Absent patent protection or a confidentiality agreement that accepts an obligation not use or disclose an idea – which are extremely difficult if not impossible to obtain with only an idea – the idea can be taken and used without payment.

While confidentiality agreements, or non-disclosure agreements as they are sometimes called, are absolutely essential for inventors in the early stages to protect their idea, the problem is they are only going to provide protection with respect to those who have accepted the confidentiality obligation. And if and when the confidentiality obligation is broken you only have a claim for breach of contract (i.e., breach of the confidentiality agreement), but the trade secret that was your invention will no longer be a secret. So, before you would be tempted to believe there is a broad based way to protect an idea without it maturing into an invention that can be patented, or even an invention without a patent, you need to consider spend time to understand the purposes and limitations of confidentiality agreements (see hereandhere) and trade secrets (see here, here and here).

This does not mean that inventors, or those who aspire to become inventors, should give up at the idea stage when the realization is made that there is only an idea present without some identifiable manifestation, but it does mean that more work is necessary in order to flesh out the idea and bring it across the idea innovation boundary. The goal is to get to the point where the idea it is concrete enough to be more than what the law would call a mere idea.

The moral of the story is that mere ideas cannot be protected, so inventors need to think in terms of an invention. Inventions can be patented. Ideas cannot be patented. So, you do not have an idea, you have an invention, or you will have an invention if you continue on your journey and don’t give up. You just need to get from the idea that inevitably begins the process to an invention, which is the culmination of the innovation part of the journey. And once the culmination of the innovation journey is realized then it becomes time to file a patent application.

As one contemplates moving from idea to invention to patent and ultimately, hopefully riches, a dose of reality is in order. First, stop thinking you will get rich by selling your ideato industry and sitting back and collecting royalty checks for doing nothing. That may be what late-night TV commercials want you to believe, but it is not reality. If inventing were as easy as thinking up an idea and riches would follow practically everyone would be a rich inventor! Ideas are a dime a dozen. They are valuable because they are a necessary part of the innovation journey, but it is not the idea in and of itself that creates monetary value, rather the valuable proposition inventors provide those interested in buying or licensing invention rights is found in the solution.

Inventors make money by identifying a problem, formulating an idea about how that problem can be solved, and then creating a solution. For example, the observation that using a snow shovel to clear snow is a back-breaking endeavor is obvious to anyone who has ever shoveled snow. The desire or belief that there has to be a better way to remove snow from a residential driveway is likewise not revolutionary, or particularly valuable. The idea that a mechanized solution would make the process faster, easier and cause fewer muscle injuries is a good one, but without the offer of any kind of solution the mere idea that a mechanized solution would be fantastic doesn’t create any value. But if you were the first person actually able to build a mechanized solution that would throw (or blow) the snow off a driveway you would have an invention that could be patented, and one that could be quite valuable in the hands of the right licensee. Perhaps royalty checks would roll in, but would it be for doing nothing? That mailbox income that might show up every quarter for years is attributed to the work done to create a valuable solution to the problem. The idea matured into an identifiable manifestation that was valuable in the hands of another. An inventor’s dream, but hardly money for doing nothing, although the inventor’s work is frontloaded in this monetization scenario.

Essentially, what inventors need to do is identify a problem, formulate the idea and then work toward finding a solution. The above example of a snow blower is an illustration of a common inventive idea becoming a reality by identifying a task that can be made easier with a new device. The snow blower pictured here was patented on November 25, 1975 and is titled Snow Blower Safety Chute.The improvement here is with respect to element 22, the safety chute. The patent explains that despite manufacturer warnings people injure themselves every year because when they attempt to clean out the compacted snow from the discharge chute, they do not stop the engine. Thus, the inventor’s desire was to prevent injuries because a certain number of people – perhaps many – won’t follow safety directions despite being warned.

The idea was to create a chute that could be safely cleared while the engine was still running. The solution was the use of prongs extending downward into a portion of the chute, which could be manipulated by the user to loosen the packed snow safely while the engine was still running. The valuable proposition is the solution to the problem, not the identification of the problem, which the manufacturers knew about because warnings not to clear the discharge chute with the engine running were included.

Many people will come up with ideas, you’ve no doubt heard many friends and family talk about their invention ideas. I need a tool that does X, why hasn’t someone thought of Y, this would be better if only it did Z. For most people that is as far as they get, but inventors will go farther, but sometimes will still find themselves getting stuck in the idea phase. If that happens don’t just throw in the towel. Many good many inventors will become stuck in the idea phase from time to time, so if that is where you are you are not alone.

First, it may surprise you to learn that you just think you are stuck in the idea phase and you might actually have an invention without even knowing it yet. United Statespatent lawsdo not require you to have a prototype in order to apply for a patent, all that is required is that you be able to describe the invention so that others could make and use it. So, while you do need to have some kind of identifiable manifestation, you can start by proving your concept on paper.

With some guidance to coax out your idea you might actually have more than you think. For example, with the help of someone familiar with CAD and can help you create detailed 2D drawings and 3D renderings of what you are thinking about, you might soon realize you have an invention and not a mere idea. For example, Enhance Product Developmentworks with inventors to help them turn their inventions into reality, but they also work with those who are on the path toward becoming inventors and who need help at the ideation or concept stage.

Many people will have great ideas, but what separates those who can turn their ideas into money from those who cannot is a strategy to define the idea with enough specificity so that it can become an asset that can ultimately be protected. To profit from your idea you must package it so that it is something the law will recognize as protectable.

If you are having difficulty moving out of the idea phase and into the invention phase take a look atMoving From Idea to PatentandAbout the Invention Process. These articles will provide some insights and help you formulate a plan for reaching the invention stage, which is where you want to be in order to commercialize and monetize your ideas. TheInvent + Patent System™can also help. TheInvent + Patent System™is an innovative approach to the patent process that assists inventors in drafting their ownprovisional patent application.TheInvent + Patent System™has also been effectively used to coax inventors into formulating their ideas in a more tangible way so that the concepts move from a pure idea into something descriptive enough to be legally viewed as an invention.

I also encourage all inventors and would-be inventors to read One Simple Idea: Turn Your Dreams into a Licensing Goldmine, which is an excellent book writtenbyStephen KeyofInvent Right. Although the title may sound like it contradicts some I’ve written above, Key is also the author of Sell Your Ideas With or Without a Patent, which is another a must read. Key preaches filing provisional patent applications to create perceived ownership (a term I’ve adopted from him). I’ve long been a fan of provisional patent applications, which have only become more important now that the U.S. has become a first inventor to file system.

First to file has to be interpreted as file first, which makes filing provisional patent applications quickly after an idea has matured into an invention is absolutely critical. Of course, a poorly prepared and hastily filed provisional patent application will provide little or no benefit. For more information on provisional patent applications please see:

• Provisional Applications: The Good, the Bad and the Ugly
• Provisional Patents: What are they and why do you need them?
• The Benefits of a Provisional Patent Application

For more information on patent application drafting please see:

Happy inventing!

Image Source: Deposit Photos.