I have a great idea, is it patentable?

Ideas alone are not patentable. For example, the idea to use drones to provide protection for endangered animals is not patentable, but if the details of implementation of a system or process that accomplishes this task are outlined, perhaps several patentable inventions will surface. So often, the lightbulb moment idea itself is not patentable, but the work that follows the lightbulb moment can mature into one or several patent portfolios.

As you might expect, patentability also depends on whether or not someone else has come up with the invention already (novelty) or has already come up with an idea similar to yours (obviousness).


Do I have to patent my invention?

It is not a requirement. In fact, some businesses choose to protect their competitive advantage via trade secret. Famously, Coca Cola protects its formula via trade secret and not a patent. Patents are government granted monopolies for a limited time in exchange for disclosing your invention to the public. Trade secrets on the other hand can protect your innovation in perpetuity as long as they remain, well, secret.

The decision to go with trade secret vs. patent protection can also depend on the type of invention, the industry where the invention is to be commercialized and the ease with which it can be reverse-engineered. For example, in some industries the pace of innovation is so fast that the protection in perpetuity aspect of trade secret loses its appeal. In other words, the invention is only good for a decade or maybe even shorter length of time. You might as well go with the patent protection in that instance. 

Some inventions are not good candidates for trade secret protection because they can easily be reversed engineered or their key commercially interesting features are easy to copy without specific knowledge of the trade secret behind the scene. These inventions are better protected by patents.  


What is a provisional patent application?

A provisional patent application is a type of filing that grants a priority date to a disclosure. It is neither published, nor examined by the USPTO and expires a year later.  A provisional is one of the most cost effective ways to get your invention to the patent office, obtain a priority date and free yourself to publicly talk about your invention, raise funding, hire developers or manufacturers to get your venture started, without losing the rights to your invention. You can even use the term "patent pending" on your product or service if you have a provisional on file. 

A provisional application is not a patent application. You have to file a full utility patent application no later than one year from the filing date of the provisional and claim priority to it in order to take advantage of your provisional filing. Practically speaking for most startups, the provisional will give them (and their patent attorney) an opportunity to start thinking critically about their IP and the direction it should take early on. The startup then gets a year to try out the idea in the market place, raise funding, find talent and all the rest that goes into making of a successful company. 

However,  a provisional is not always the best way to start out developing your company's IP. For example, most savvy investors know that a provisional filing is not as valuable as an issued patent. They know there could be a long way ahead of the start up to obtain exclusivity for their IP. If an IP portfolio with some issued patents is in your fund raising strategy, then ditching the provisional and going even with an expedited patenting process might be ta better choice.  


Disclaimer: The information above is for educational purposes only and is not legal advice. Your particular case may differ from the general context of the questions and answers discussed above.