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Patentability: Does Your Idea Qualify for a Patent?

SECTION: Patentability: Does Your Idea Qualify for a Patent?


By Stephen Paul Gnass

In order to be able to apply for a patent on a product, you need to know whether anything like it has already been patented. In order to determine this, you'll need to conduct a "patent search" to discover if a similar product has ever been patented. This process requires researching through patents in your specific category, as far back in history as possible.

For about $500.00, you can do this through a patent attorney's office. But if you have the time and your city has a patent depository library, you can also do your own preliminary search for free. There are over eighty U.S. Patent Depository Libraries located throughout the United States, at least one per state. But first, here's the difference between a "patent" search and "trademark" search.


A patent search is completely different from a trademark search. A trademark search is a simple process of a computer going through a database of trademarked words to see if any of the words match. They will come up with a list of similar trademarks for you to review and determine whether your proposed name is already taken or not.

A company's trademarked name and logo is its intellectual property. If you find trademarks that are very similar to your proposed name, and are even in the same industry, you might consider a different name from the get-go to help you save money in filing it, then having to drop it and filing a new name because you are infringing on somebody's trademarked name.

Companies who own trademarks can subscribe to a "trademark watch" service which provides them with reports of similar names that are in the process of being trademarked. Therefore if your name is too similar, these companies will know about your trademark registration and you could receive a letter from their attorney that your proposed name is infringing upon their trademark.

However, if your proposed name is the only name you want and you feel it is different enough from any other trademarked names, you can take it through the procedure of dialogue between attorneys to determine whether you will have a legal battle or not. Your attorney will be your best counsel on this.

A trademark search usually costs in the range of $200.00.


A patent search is a search of all the patented items in the U.S. Patent and Trademark archives to see if your product has already been patented. Up until 1995, patent durations were for 17 years from the date of the patent's issue. Therefore if you happen to find any patents exactly like yours which have expired, these patents are now "public domain" and cannot be patented again.

Similarly, if you find a patent which is still active, you will not be able to patent your product unless it is different enough. However, finding existing patents whether in the public domain or active is very valuable to you because it can help you and your patent attorney develop your patent so that it isn't rejected based on past claims of these existing patents. This is where a good patent attorney is crucial.

A patent search is a more specialized task than a trademark search, because to conduct a thourough patent search really requires thought and analysis.

While we recommend getting a patent search with a qualified patent attorney, we also suggest that you do a preliminary patent search yourself because you will learn a lot about your product by doing this preliminary research. By doing a preliminary search yourself, you will also be able to compare the results to see whether you came up with any patents that were not on the patent attorney's list.


There are about 80 Patent and Trademark Depository Libraries throughout the United States - at least one per state. If you don't have a Patent and Trademark Depository library near you or in your state, you might want to consider taking a business trip to the nearest one if's within your budget and if you have the time. By going there physically, you will have the direct assistance of the qualified department staff to help you with any questions or problems you may have. You can estimate at least one good full day's work at the depository library. Copyright searches as well as trademark searches can be done in these specialized libraries too.


If you're limited on time and money, you can also do a "preliminary patent search" right on the internet. However please note that the U.S. Patent & Trademark Office says that
"you can search patents on the web, but you can't do a patent search".
However, starting out by doing a preliminary patent search on the web will familiarize you with the terms and general system so that you are prepared and better educated when you either go to the Patent and Trademark Depository Library, or to a patent attorney. Instructions on this are in the next section.


When you shop for patent attorneys or patent searchers, ask what database they use to conduct their search. Many use a standard computer database which searches for all patents issued after 1965 because - believe it or not - earlier patents aren't computerized yet. Patent and Trademark Depository Libraries also have access to the computer database (sometimes they charge a nominal fee of $25-50) so you can do a manual and computerized search at the same time.

Most patent attorneys also do patent and trademark searches. However, there are also independent research companies that specialize in patent or trademark searches and other aspects such as trademark watch services (once you have a trademark or patent, this is a service that sends you a list of any new trademark or patent applications that are similar to yours), etc.

Average rates for patent searches are about $500.00, and cost more if it's done more thouroughly than just through a computer search. If you check firms located in Arlington, VA or Washington D.C., they usually do their searches with the original patent records located at the United States Patent and Trademark and Office, which could be a more complete search.

As with any service, we recommend that you call and request that brochures be mailed to you first, and ask them lots of questions about how they do the search and what databases and sources they use. Then start laying out your information so you can compare all of the services at a glance.


As you research patent search companies, be aware that you might end up contacting what are known in the industry as "invention scam operations" who will offer to not only do the patent search, but also do an evaluation, file the patent, market the product, get it licensed and will basically offer to do it ALL for their clients (for escalating fees, of course). The only way to distinguish between companies is to gather information first, and determine whether the company's mode of operation fits the pattern of these types of operations. (Read the "Scambusters" section for more details.) In the interim, feel free to give us a call if you have any questions about your research.

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