Patenting an Incomplete Invention – Keep in Mind the Enablement Requirement

Sometimes it may be oversimplified to tell an inventor that his or her invention can be patented before it is complete, because this may cause the inventor to try to apply for patent too early.  While an inventor is not required to fully complete his or her invention before trying to apply for patent protection, the inventor should not file a patent application (specifically the nonprovisional utility application) when his or her invention is still in an abstract stage.  If an inventor tries to obtain patent protection for an invention that is still in an abstract or concept stage, his or her patent application may be rejected by the Patent Office for lacking the required details, which is commonly known as “non-enablement” rejection.

Under U.S. Patent Law, the patent specification (i.e., the disclosed invention) must be complete enough so that a person of “ordinary skill in the art” of the invention can make and use the invention without “undue experimentation”. Unfortunately, there is no precise definition of “undue experimentation” and the standard is determined based on the art of the invention.  As an illustration, you will not get a patent relating to time travel if you simply disclose that time travel can be achieved when you travel faster than the speed of light without more.  The Patent Office likely will consider it as an unproved concept and does not enable a person of ordinary skill in the art how to make and use the invention.  Anyone reading your patent will need to figure out how to travel faster than the light first, which will require a great amount of experiment for certain.  On the other hand, if you also disclose how to build a transportation that travels faster than light, and you have proof that the transportation actually works as a time machine, I have no doubt that you will receive a patent for it, at least for the time machine part.  Next time, if you want to apply patent for your invention and is wondering whether your invention is complete enough, consider asking yourself whether someone reading the disclosure of your invention can make and use your invention without great difficulty.  If your answer is yes, then you are likely ready.


© 2017 Peter Huang