How to Patent an Idea 101: Make Sure Your Idea is Not Already Taken

You have recently thought of an idea that you think could set you up for life because that is how great it is. But, what if that idea is already taken? As an inventor, you need to know how to patent an idea and how to tell if your idea has already been patented.

How to Patent an Idea 101: Make Sure Your Idea is Not Already Taken

So, you have a great idea, that you want to turn into a flourishing business or maybe a product that’ll change the world, and you are ready to give it shape. But, you suddenly find out that there is already a patent issued by some reputed university or organization on the same idea.

Infringing on a patent can have serious legal consequences so, in this situation, your best option is to consult a lawyer and find out the details about how to patent an idea, what are the active clauses. Here is a detailed take on things you need to consider and steps you need to take once you find out that your idea already has a patent.

Know the Difference between Issued Patents & Published Patent Applications

Issued patents and published patent applications are two different things. The issued patents come in the form of 7 digits that do not refer to any specific year. The newest starts with 8 and the older with 7, 6, 5 and so on. To find out if the older ones have been published under a different number, the USPTO’s Public Pair System is used.

This system can let you know whether the application is on its way to becoming an issued patent. If you are keen to patent an idea that is your own, it is necessary to monitor the applications that make you concerned and doubtful. Through monitoring, you can come across a notification of a change in status.

A published patent application, on the other hand, is not a patent though it has the possibility to become one in the future. The difference between an issued one and an application lies in the serial number of the document. While the former is 7- digit long, the latter starts with a year followed by an 8-digit number.

Find out if the Patent is Still Active

The next step requires you to find out if the patent you are looking at is an active one. With over 8 million patents issued so far, chances are that many of them have been abandoned or have already expired. The reasons for abandonment can vary.

Often, people who patent ideas fail to pay the required maintenance fees. However, this status cannot be known from the Public PAIR system. As a basic rule, patents filed after 8th June 1995 have a 20-year term from the earliest effective filing date while the ones filed before the said date had a term of 17 years from the date of issue.

While this way of finding out whether a patent is active can be confusing, one possible method is to use the patent calculator. But this too has quite a few limitations. For instance, this tool will hardly let you know about the patent’s earliest effective filing date nor will it take into account factors like Patent Term Adjustments and Terminal.


In such situations, the only possible way of understanding if the patent is active is by seeking the help and guidance of an intellectual property attorney.

Analyze the Claims of an Active Patent

This is the most vital part of all that you need to do when it comes to a patent idea and realize that your idea already has a patent. All active patents have claims, mentioned at the back of the document explaining the scope of the legal protection given to the owner.

It is only an expert lawyer who can understand these claims and advise you on obtaining a clearance opinion in case the claims of the patent do not read on the idea. A clearance opinion can be effective in protecting your company from damages, should there be a case of infringement in future.

Now, in the event of an active patent with claims that perfectly read on the idea, there are few other options to explore. For instance, you can go for obtaining a license if the patent holder is not actively practicing the idea or perhaps purchasing the patent outright.

In any of the above instances, the professional expertise of an attorney is of extreme significance. He/she can also offer you with several options and thorough guidance in the subsequent steps to be taken if your idea is already patented.

At Paul & Paul, we are here to help you through the steps that go into the patent process. If you’ve just found out that there’s already a patent on one of your dearest ideas talk to one of our intellectual property attorneys at 866-975-7231 and find out what should be your next step.


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