Recently I had an idea regarding hearing aid technology, and I discussed it with a vice-president of a hearing aid manufacturer. Today, I got an e-mail from another person at the company which indicated that they will be looking seriously into my idea, and it looks likely that they will be developing some prototypes based on my idea.
When some of my co-workers heard about this, two of them (independently of each other) suggested that I take out a patent. I was initially confused by this…don’t you need an actual product in order to take out a patent? Or is it really possible to patent an idea or concept without any physical product?
You do not have to have a working model, but you do have to have a design. For example, you can’t patent the idea of a “flying machine”, but if you were the first to have a design for making an airplane, it would have be patentable.
The standard disclaimer - this ain’t legal advice.
Sure, it’s called intellectual property (IP), and it can include just about any original idea with some sort of market value, whether or not it leads to a specific product. It could be a way of improving a manufacturing process, or a new management technique.
It’s possible to patent a lot of IP. However, the general rule (in Australia, anyway) is that as an employee, your company probably owns any IP you created during company time. If you think your idea is a good one, commit it to paper in as much detail as possible and go see a lawyer.
Be warned that there’s no real protection (in Australia) for a bright idea you just told someone about orally. It’s got to be written down precisely.
I think I should give more details, since I suspect some confusion can arise from how the OP is worded.
I am not an employee of the hearing aid company mentioned in the OP. I work for a children’s hospital, and I was attending a conference in Minneapolis last week hosted by this hearing aid company. It was at this conference that I met the vice-president and discussed this idea on how to improve hearing aids with him.
As for design, I’m probably out of luck on that one. I’m not an engineer.
I’d have to disagree with x-ray. A ‘design’ is not always necessary as it does not have to be a tangible item you are creating.
To be completely clear, you CAN patent an idea alone, even one that doesn’t lead to a particular “product” (though yours seems like it might). But it does need some form of written description, as mentioned above.
As a non-employee of the company, your position is better. Still, if you just had a chat with the guy and mentioned your idea, he’d be entitled at law to go away, build it and sell it. See a lawyer!
What did Arthur C Clarke do with the idea of satellites? He had an idea of how an artificial satellite worked and released it to the public at large so that noone could actually patent them. Is that the same sort of thing? Could Clarke have patented the idea of an artificial satelitte? Or the fellow who invented the World Wide Web (can’t remember specifically what he came up with.)
As the company has formally acknowledged receiving your idea, I don’t think a lawyer is necessary at the present time. Just don’t lose that letter.
Okay, you got a bright idea but have no way of implementing it or the technical expertise to implement it. Yeah, you could probably get it patented and you’d end up with…a patent. Unless your idea would somehow revolutionize hearing aids, you’re probably better off letting the company do the R&D and buy your idea outright.
IANAL or an inventor, so you should speak to a patent attorney about the matter. Nothing is too inconsequential to be patented.
x-ray, if you’re going to be rude, you might as well provide a cite. As I said, I only know about the Australian system, but I do have quite a bit of experience over here. Have also recently filed a US patent for a manufacturing process. No machines etc - just a clever and original concept with potential commercial value. The application did not include designs etc, but rather an explanation of how the process works.
The fact that the company acknowledged your idea does not necessarily mean they acknowledge your ownership of the IP. Based on the current facts, they can acknowledge you mentioned it to them, but still own all the IP in the idea if they are the ones who put it down on paper, work out the details and start making the thing.
If you went thru the patent process yourself, you might have a saleable patent at the end of it. It’s a complex issue and you need better advice than we can provide. Get some sort of legal advice - perhaps the lawyers at your hospital can help.
I don’t see how you think x-ray was being rude lambchops. Anyway, I think what he tried to get across with his airplane analogy was, your idea can’t just be, " I think a smaller hearing aid that sounds better should be made". You’d at least have to have design (or description) of how that could be done.
Yes, X-ray was being rude (terse), and worse, incorrect. Manson - your interpretation of what x-ray said is very generous.
Talking about needing a ‘design’ is very misleading in this area because a design patent is a sub-type of patent which protects ornamental designs for an article of manufacture. It should not be confused with a patent. As lambchops said, a patent does not need to be tangible, therefore a ‘design’ is not necessary. You do need however, to explain how your idea works.
Atreyu - your idea may very well be patentable. Having said that, the fact that you have already disclosed your idea may be problematic and this will depend on the exact nature of your disclosure. You need to talk to a Patent Attorney as soon as possible.
You don’t need an actual working product to have a patentable invention. If you could convey your idea to the company and this was enough information for them to start making prototypes, then on the face of it it looks like your idea is patentable. But there are a lot more hurdles you have to cross, so its very difficult to give a yes / no answer at this stage. But you should definitely look into it with a qualified Patent Attorney.
Disclaimer - I am an IP lawyer, but I’m not your lawyer, so I don’t accept liability for any of the statements made above.
People have patented everything from business methods to algorithms to abstract interface concepts. There is no need for a patent to be for a tangible thing.
Thing, no. Non-abstract . . . arguable. “Mere ideas” still aren’t patentable if they cannot be applied to produce a tangible effect. Or, if they cannot be described in such fashion as to make them usefully available to the reader of the patent.
“Conception and reduction to practice” are, I think, the touchstones you are looking for in determining whether an “idea” is ripe for patenting. Conception is the idea (“Wow, it would be cool to have space satellites!”). Reduction to practice is figuring out how one might do that. Reduction to practice can be literal, or “constructive” (i.e., done in your head). For that reason, be cautious when people start telling you they want to patent an “idea,” or that such and such a science fiction writer “invented” X. If he didn’t know how to achieve or implement fantabulous result X (intelligent robots, a workable waterbed, satellites, faster than light travel, ad infinitum) (which often seems the case with “high concept”/Doc Smith S.F. types), the “invention” is somewhat less impressive (and probably didn’t earn him any more patents than have my theories on possible practical applications of electro-chick-magnetism).
Two cases were presented (which I remember) re. Patent law (US):
The little bit of eraser on the end of your pencil. The US Patent Office issued a patent for it. Bad idea, as it turned out.
Simply everyone saw that and said “I think I’ll put a little bit of rubber on the end of MY pencils”. Result: suit brought, patent was nullified. Its defect was that it did not cover either a product or a process - the grantee did not invent the pencil, did not invent the eraser, and did not invent the process by which the eraser was attached to the pencil.
Ball-point pen. Valid patent, but (at the time at least) unenforceable. The things were selling for > $20 (circa 1941) - at that kind of profit, too many are going to pirate the design.
So, is an idea patentable? Not by my 1972 bus. law prof.
Are these cases still the rule? Who knows. IP has been expanded so far recently that your “idea” may just qualify. (it undoubtly would have had a stronger case if you had not willingly divulged it to another, absent any enforceable contract).
If there are patent lawyers lurking about - a few years ago I saw a blurb about a multi-million judgement for the fellow who devised the variable-speed wiper control found on just about every car made since early 80’s.
Q’s:
Did this judgement expand patent law?
Do you think he’ll live long enough to see any money?
(call me cynical, but the defendants were “Big 3” - not really folks i’d trust to ‘do the right thing’)
A patent may be granted if the invention
a) is new;
b) involves an inventive step;
c) is capable of industrial application;
and is NOT
a) a discovery, scientific theory or mathematical mehtod;
b) an aesthetic creation (literary, musical etc.);
c) a method of performing a mental act, playing a game, doing business, programming a computer (with exceptions) or presenting information;
d) immoral or counter to public policy.
So, as long as your invention is “technical” in nature and discloses full details of what it comprises (ie. you cannot simply describe it in terms of the effect to be acheived, eg. “a car which goes 1000mph”) your invention should be patentable; you do not need to actually build a device, just disclose exact details of how it would work.
And to echo conkerist, your hearing aid might not be new any more because the world already knows about it, even if you were the one who told them! See an IP lawyer ASAP.
I don’t know that that’s a description of an actual case. The “invention” you describe most certainly is an “article of manufacture” or “apparatus” (or “product,” if you will). While a patent for making such a product would be possible, a patent for the product itself, even though a combination of two old things, is also possible, if the combination is new and inventive. At this point, almost everything you could come up with combines one or more existing other devices or processes – after all, there are 6,000,000+ U.S. Patents. That’s fine, thousands of the combinations still keep getting patented.
You may be thinking of a slightly different teaching example: "Tom patents the pencilw/o eraser in 1900. Dick patents the eraser w/o pencil in 1901. Harry (validly) obtains a patent for the first pencil-plus-eraser in 1902. Harry can sell his product to the world, right, given that he has a patent? WRONG. Tom’s, or Dick’s, patent is a “blocking” patent – Harry’s sale of a (novel) composite product would infringe the patents for one (both, actually) of the (non-novel and patented) components. Sounds perverse? Patents don’t actually give or purport to give a right todo anything, though they do give Harry a right to exclude anyone else from selling pencil w/ eraser. In this situation, what Harry likely ends up doing is getting together with Tom and Dick to cross-license for their mutual benefit. (Att’n T, D, & H: Proceed at your own risk).
“Unenforceable” is, I believe, a term of art referring to an improperly obtained patent. But, we understand the concept you’re getting at. I don’t know if the story is factually true about the ballpoint pen. Piracy would seem always to be an issue, but esp. in the days of relatively primitive industry, there might be some non-patent-related barriers to entry in the ballpoint market (unlike today when Chinese factories can knock off pretty much any low-end consumer product on demand). Courts and marshals in the U.S. can also get involved to help against large-scale domestic pirates.
You are thinking of Robt. Kearns. He did collect much of the millions he sought (though he apparently settled for less). See
Which chronicles (in seemingly pretty biased form, on behalf of a guy trying to talk up patents for his business – he describes in heroic terms on or more ‘patentees’ described elsewhere as flimflam artists) significant patent victories, including Kearns’s.
As you know, individual lawsuit victories can be very fact-specific. They don’t necessarily change the trend of the law (except in a vague sense of “increased acceptance of big patent verdicts.”). I’m not sure whether Kearns’s case involved any important legal issues as opposed to case-specific fact disputes.
One area in which (to my limited understanding), UK and EU are significantly less liberal than U.S. They are, AFAIK, still insisting on the old distinction that “mere alogorithms or business methods” aren’t patentable (though they may be more comfortable if the inventor claims “a machine for performing business method X” because that “feels” more industrial or technical to them. U.S. (as you’ll see from the news accounts of sometimes-stupidly-issued patents) now appears to be granting business method/algorithm patents with no requirement at all for such a reified “industrial” or “technical” application (though typically such patents will be aimed at a specific technical venue, i.e., the Internet).
Let’s all recite the magic words together, shall we!
In order for something to be patented validly, it must possess three characteristics: novelty, utility, and non-obviousness.
Novelty: it’s gotta be new. If someone else invented it first, you can’t patent it.
Utility: it’s gotta be useful. This is what separates patents from copyrights; patents are only for useful articles. So, you can’t patent an artwork.
Non-obviousness: it’s gotta be something that’s not plain to any yahoo who looks at the problem. This one can be sticky, because what’s obvious to a person within a given industry may seem miraculous to someone who doesn’t work in that industry.
