Malaysia: "I Thought Of That First!" – Can You Patent That Bright Idea?

Last Updated: 14 June 2016
Article by Joel Cheong

Ever had that momentary flash of genius where you had an idea so bright and radiant that it lit up the space above the latrine you were sitting on and you couldn't help but exclaim "Aha!", to the horror of the occupants of nearby cubicles?

What if that idea was related to something that would change the way things work or provide a solution to the world's problems? What next?

You would think to yourself that this idea is so brilliant that certainly nobody else would have thought about it, and you start making a business plan out of this idea, then realise that somebody else is bound to copy it. And the thought that some copycat is going to rip off your idea is plainly unforgivable.

So you find a patent agent and boldly declare to him that you have a brilliant idea you would like to patent. He gives you that condescending look before telling you no, you cannot patent that idea. In response, you storm out of the room, boiling with indignation that this person of minute intellect had the audacity to question your brilliant idea.

But is he correct? Can ideas be patented?

The short answer is, no, ideas per se cannot be patented.

Ideas are generally too broad or abstract to be the subject matter of a patent. For example, when stuck in a traffic jam, one would think that, "If I had a flying car, I wouldn't need to be stuck in this mess and take nonsense from these geniuses who are above the use of indicator lights." That sounds like a great idea. Who wouldn't want to be free from being stuck in a mind-numbing traffic jam?

To make the idea into something patentable, there must be a way to put the idea into actual practice. This is when ideas make the shift from being just an idea to an invention. An invention is basically an idea that solves a problem and can be put into practice. Returning to the example of the flying car, just the idea of a car that is capable of flight is of no value to anyone. Instead, what is of value is the manner in which the car is able to achieve flight. One would have to describe how this flying car would function, what are the physical features that would enable it to function, and what the benefits are if they are not apparent.

Thus, to turn this flying car into reality, one would most likely spend countless hours on the drawing board and the garage, designing, tinkering, experimenting, and watching YouTube videos of cats being spooked by cucumbers. At this stage, it is important to remember that for an invention to have a chance of receiving a patent, it must be novel, inventive and industrially applicable.

In consideration of the above, it is always best to see what has been done by other people and improve on their work. Inventors sometimes come up with brilliant inventions on their own, without any external input, and go ahead with the entire patenting process, only to find out too late that the invention is not novel because someone in another part of the world had already disclosed the same invention in a research publication, patent application or even in a local magazine.

Another trap that some inventors fall into is that they take a product that is already in the market, make some minor or immaterial modifications to it, and assume that the modified product has patentable value. Unless these modifications create an effect that nobody could have anticipated, it can be safe to say that the modifications do not impart an inventive value to the invention.

This brings us to our next point which concerns inventive step. An invention must be inventive in order for it to qualify for a patent. This means that the invention must not be regarded as obvious by a person having ordinary skill in the field of the invention or in view of the body of knowledge available. This person need not be a genius, but can be a competent workman with no need for imagination, such as an electrician or a plumber.

Like the Wipeout1 obstacle course, the barrier of inventive step can be tricky to overcome, as what may be obvious to one person would not be to another. One test to see if an invention lacks inventive step is to see if a solution is intuitive or is an obvious solution based on the body of knowledge available. Going back to the example of the flying car, if, in an engineering competition, the challenge was to make a car fly, and the first thought that came to the all the engineers was to add wings and turbines to the car, then such an invention would be deemed to be obvious. But if one engineer thought to make some modification to the wheels that somehow enables the car to fly, which didn't occur to any of the other engineers in the same field, then this modification would not be obvious and can be considered to be inventive.

An invention must be industrially applicable, which means that the invention must be capable of being used or produced in an industry. This means that the specification of the invention must include sufficient details to enable a person skilled in the art to reproduce the invention without any further research. So, while you do not need to explain that the cover is secured by tightening screws at A1 and A2, you do need to explain that the hyperdrive motivator needs to be in working condition in order to go to light-speed.

While it may appear that an inventor would need to have a working prototype at hand to be able to provide a complete description, it is not necessarily so, and may not be the best course of action, since the patent system works on a first-inventor-to-file basis, where if a group of persons each file a patent application for the same invention, the person who files the application first will be the one who gets the patent.

Therefore, if you are fairly confident that your invention is able to function based on known laws of science and engineering, and are able to describe it in a sufficient manner to enable reproduction of the invention, then don't wait, make that trip to the patent office now (after you have been properly advised by a patent agent and have a well-drafted patent application specification)!

Do you have an idea that's going to change the world? Or do you feel uncertain now after reading this article? Don't give up just yet. As the inventor Thomas Edison once said, "Genius is one percent inspiration, ninety-nine percent perspiration." The world would not have bagless vacuum cleaners (Dyson), stories about a boy who lived (Harry Potter) and an operating system named after an architectural feature (Windows) if their creators just gave up halfway. So don't give up, but keep persevering and turn that bright idea into an invention.

Footnote

[1] Wipeout is a popular American TV game show pitting contestants against each other in a challenging obstacle course

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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