Is your idea original? Probably not--and that's fine. More than fine, actually. Let me explain.
When you begin thinking about whether or not your idea merits filing intellectual property to protect it, the first thing you will want to do is conduct a prior art search. In order for an invention to be patentable, it must be "new." An invention, in other words, cannot be patented if the "claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention." Prior art (also known as state of the art or background art) constitutes all of the evidence that is relevant to your claim of originality.
As you search for prior art, I can almost guarantee that you will discover some variation of your idea. Don't freak out! That's actually a good thing! As my friend Gene Quinn, patent attorney and founder of the website IPWatchdog puts it, "The reality is that there is always prior art for an invention. The questions are, just how close is it to what you want to protect, and are your expectations for obtaining a patent reasonable?"
Good ideas don't emerge out of thin air. They improve upon what's come before them. If your innovation doesn't exist on the market today--which you know for sure because you've actively searched for it and haven't been able to find it--you shouldn't be distraught about finding something similar in prior art. The fact is there's a reason it doesn't exist on the market today. There are so many patents issued that give absolutely no thought to manufacturing. And that's how those innovations will remain: forever in the form of a patent, and not a product on the market. Something like 97 percent of all patented innovations never even recoup the costs of filing the patent.
Most patents can be worked around with a little effort, which is another reason why prior art shouldn't scare you off. This is a good time to mention that if you decide to file your own patent, your job is to think of all the ways someone might try to work around you. If you factor that knowledge into your application, your patent will be that much stronger for it.
The way I see it, when you discover similar prior art, you have three options. You can design around the patent and use what you find to write yours differently, if the patent isn't very strong. If you chose this route, you will need to narrow down how your innovation differs and why it deserves to be patented. You can contact the inventor to try to license the idea from him or her, if the patent hasn't expired. And finally, you can walk away right then and there, saving yourself time, money, and heartache.
I encourage my students to teach themselves how to search for prior art because it's such a valuable skill. You could hire an independent party to do it for you. But in the long run, becoming the expert will serve you well. I'm speaking from experience here.
Years ago, I read a newspaper article that described how rarely medicine bottles are able to contain all of the information they need to, which prompted me to come up with the idea of a rotating label. I'd never seen a rotating label on the market, after all. My attorneys encouraged me to hire an expensive professional search firm in Washington D.C. to make sure the idea was original. No, they didn't find anything, the firm told me. That proved to be untrue a few months later during a meeting with Proctor & Gamble. I had hoped the company would want to license the idea from me. Instead, two of their attorneys slipped me a piece of paper with two rows of numbers on it. They were patent numbers. No, the P & G executives told me, they would not be paying me a cent for the idea, because it wasn't even mine.
At first, I was crushed. But I kept thinking about it. Rotating labels didn't exist, for all intents and purposes. Why not? I discovered that although the concept had been patented decades before, its execution had not. I began studying up on all of the different ways labels are manufactured. I wrote new patents, which were issued. I built up a wall of patents, in fact. And eventually, I experienced the joy of watching spin labels roll off the manufacturing line, my simple idea brought to life.
Stay tuned for next week's column, "How to Search for Prior Art."