That Unpatentable Idea Might Be Your Best

Someone on your team comes to you with a great innovation. Getting a patent will increase your technical reputation and give you a competitive edge in commercialization. You discover, however, that the innovation is unpatentable under the complex patent laws of the U.S. and other countries. Don’t lose heart; there is still reason for encouragement. Whether or not an innovation is patentable has no bearing on whether the idea is commercially viable, promotes safety and/or contributes to efficiency.

An innovation can be valuable but still not qualify for patent coverage for many reasons:

  • The innovation might have been disclosed to the public for too long.
  • The innovation might not be new or nonobvious over the prior art, generally meaning any patent, publication or product available to the public in any country, in any language and at any point in history – a high bar in itself.
  • The innovation might not be “patentable subject matter,” generally excluding printed matter, known processes improved only by putting them on a computer or the internet, using known structures for somewhat different purposes, inventions that are merely abstract ideas or laws of nature, and similar concepts.

Consequently, a decision to close a patentability discussion should not eliminate the innovation from overall consideration and usefulness. A complete assessment of an innovation is not solely legal; it should include business, technical and safety. It should also be noted that an unpatentability appraisal might not be the final word. If an innovation seems particularly valuable, a deeper evaluation might reveal an improvement or a particular aspect that is patentable

In an example from our industry at Faith Technologies, suppose a field employee engineers a long-handled tool enabling one to perform an overhead task from the ground instead of from a ladder. Even if that tool is not patentable, its use will improve safety by reducing ladder use and enhance efficiency by reducing the need to move and set up ladders. That innovation should be shared with all of your field employees who do similar work.

The unpatentable status of that tool should not deter you from commercializing it. Getting a patent on a product does not give one the right to produce that product; it gives one the right to prevent others from producing that product. As long as selling the tool will not infringe others’ patents, you can make and sell the tool, including the use of other intellectual asset protections to give you a competitive edge. Branding and trademarks, exclusive distribution agreements and manufacturing efficiency secrets are examples of other protections that can give you a real advantage in the market.