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Is it Patentable?
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   Is it possible to patent just an idea?
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JimIvey
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Re: Is it possible to patent just an idea?
« Reply #5 on: Feb 6th, 2006, 4:42pm »
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It all depends on whether you give enough details that an ordinary software developer can make and use your invention from your description.  If she can, you're in luck.  If not, no patentable rights.  
 
Notice I didn't say "no patent."  Patent examiners aren't always particularly tough on that issue, so it's possible that you'd end up with a patent that would not withstand challenge in court.
 
Unfortunately, the time you'll most likely know if you've described enough would be too late to add more description.  So, it's usually best to err on the side of over-describing rather than under-describing.
 
I'd suggest talking to the software engineer some more and seeing if you can identify some of the building blocks that would be needed for your idea (all of them, if you can).  If you can show those known things at boxes on a block diagram and explain the rest, you're in pretty good shape.
 
Regards.
« Last Edit: Feb 7th, 2006, 10:11am by JimIvey » IP Logged

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Re: Is it possible to patent just an idea?
« Reply #6 on: Feb 6th, 2006, 4:53pm »
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Jim's responses answer your question; but here's a slightly different slant.
 
I'll paraphrase the relevent section of the US patent law:
 
   The application shall contain a written description of
   the invention, and of the manner and process of
   making and using it ... as to enable any person skilled
   in the technology, to make an use the invention.
 
     [See 35 USC 112 paragraph 1]
 
You wrote "I don't know what exact materials are used but talked to a software designer that said it can technically be made."
 
I'm not sure what you mean by "materials."  But if you mean actual physical parts and pieces, I doubt that a software engineer would be a "person skilled in the technology."
 
 
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Re: Is it possible to patent just an idea?
« Reply #7 on: Feb 6th, 2006, 4:57pm »
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It's a software/hardware type thing. It's a software that can be used in cell phones and PDA's and SmartPhones, etc. When I sent the software company my idea they said they would be able to make it. When I was talking about not knowing what materials to use, yes I was talking about not knowing the parts needed. Like, I know what they are to an extent, I don't know how to put it together and make it and stuff like that.
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Re: Is it possible to patent just an idea?
« Reply #8 on: Feb 7th, 2006, 1:31am »
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John Smith asked "is it possible to patent an idea?"
 
Here is an excerpt from my soon to be released book on Software patents:
 
This is a question many people ask. Linus Torvalds (driving force behind the Linux kernel), denounced the EU Directive on Computer-Implemented Inventions in  Nov. 2004 complaining,  
 
"It's not even just about software patents. Patents on ideas are wrong, whether in software or in business. You should patent some concrete machinery, not a way of doing things."  
 
Mr. Torvalds might be surprised to learn that the U.S. Supreme Court largely agrees with him. In fact, for the past 150 years the U.S. Supreme Court has stubbornly and consistently held that ideas and fundamental principles of nature cannot be patented.  
 
6.1 Patents on Ideas are Wrong
 
In 1854, in the case of Le Roy v. Tatham, the Court said:  
 
"A principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right."  
 
In 1862, in the midst of American civil war, in the case of O'Reilly v. Morse, the U.S. Supreme Court denied the inventor of the telegraph, Samuel Morse a patent on the use of “electro magnetism, however developed for marking or printing intelligible characters, signs, or letters, at any distances.”"
 
Electricity and magnetism are fundamental principles of nature and cannot be patented, but that was not what Morse was trying to claim. His claim was directed towards a specific use of electricity and magnetism.  
The Court’s ruling was very simple. Morse was indeed entitled to a patent on the use of electromagnetism, as developed by him but not however developed by anyone. In other words, he could not claim patent rights on things not yet invented and not described in his application. Disallowing the claim, the Court revealed their sanguinary discomfort over the impact such a broad patent might cause:
 
"If this claim can be maintained, it matters not by what process or machinery the result is accomplished. For aught that we now know, some future inventor, in the onward march of science, may discover a mode of writing or printing at a distance by means of the electric or galvanic current, without using any part of the process or combination set forth in the plaintiff's specification. His invention may be less complicated -- less liable to get out of order -- less expensive in construction, and in its operation. But yet, if it is covered by this patent, the inventor could not use it, nor the public have the benefit of it, without the permission of this patentee."  
 
In effect, Samuel Morse was trying to patent an idea, but the Court only awarded him with a patent covering his invention.
 
In 1874, in Rubber-Tip Pencil Co. v. Howard (20 Wall. 498, 507), the Court said more succinctly:
 
"[a]n idea of itself is not patentable."  
 
In 1939, the Court clarified in Mackay Co. v. Radio Corp. (306 U.S. 86 94) that:  
 
"[w]hile a scientific truth, or the mathematical expression of it, is not a patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be."    
 
Later, in 1948, in Funk Bros. Seed Co. v. Kalo Co., (333 U.S. 127, 130) the Court emphasized that:  
 
"[h]e who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes. If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end."
 
There are not obscure legal footnotes, but oft-cited, well-settled law in the United States. If anything can be said with clarity, it can be said that ideas and fundamental principles of nature cannot be patented in the United States (or anywhere else.)
 
 
 
In short, no, it is not possible to patent an idea.  
 
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JimIvey
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Re: Is it possible to patent just an idea?
« Reply #9 on: Feb 7th, 2006, 10:25am »
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on Feb 7th, 2006, 1:31am, eric stasik wrote:
In short, no, it is not possible to patent an idea.

It's good to hear from Mr. Stasik again; it's been a while.
 
However, I'll have to respectfully disagree.  I think it all comes down to what "an idea" is.  I believe the word, "idea", covers anything from the very abstract (e.g., "time travel", "a machine that soars like a bird") to the very specific (e.g., specific approaches to lossless audio compression).  I still maintain that, if the idea can be expressed in sufficiently specific terms so as to enable one of ordinary skill in the relevant technology/ies to implement the idea and can be captured in a claim that is novel and non-obvious, the idea is patentable -- to the extent captured in such a claim.
 
However, to progress in this type of discourse, we need to nail down a definition of what "an idea" is.  Some say "merely an idea" in an effort to clarify the topic -- I think adding "merely" falls short.  I think Mr. Stasik's quote evidences something more specific than "an idea":
on Feb 7th, 2006, 1:31am, eric stasik wrote:
"A principle, in the abstract, is a fundamental truth; an original cause; a motive; ... ."

But I respectfully submit that "idea" is insufficient to eliminate patentable things.  
 
An "idea" I had years ago was probably a good example of a specific idea:  why not use the divided difference algorithm used in pixelating straight lines to "shear" a two-dimensional bit-mapped image?  I have no idea whether I was the first to think of that, or the last, but that idea, expressed in those terms, was probably patentable at some point (limited only by novelty and non-obviousness concerns, not that it came to me as "an idea").
 
However, I do agree that, if an idea is too abstract to be expressed in sufficient detail that an ordinary artisan can implement the idea, such an idea is not patentable.
 
Regards.
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