Patent That Idea: How to Navigate Patenting Construction Innovations

A contractor may have many ideas about equipment and process improvements, but how can they tell whether an idea is good enough to patent? Here are some questions a construction professional should consider to help make this determination.
By James F. Herkenhoff
March 25, 2020

Construction professionals may question whether new ideas they develop are patentable. For example, if a contractor was to wonder whether a nail is a product for which patents may be available, the answer—depending on the circumstances—is most likely yes (See United States Patent Number 10,072,418). The more intriguing question is whether it is worth patenting.

To explore the answer to this question, some background on patents may be useful. At their core, patents begin “life” as an idea. A construction professionals may have many ideas, but when is an idea good enough to consider protecting it with a patent issued by the United States Patent and Trademark Office (USPTO)? Below are some questions a construction professional should consider to help make this determination.

Where did the idea come from?

Patentable ideas may arise at any time, and in any place. A construction professional, while framing a house or stamping outdoor concrete, may spontaneously stumble on a “better way,” for example, to build a stud wall or to align adjacent concrete stamps. The better way might be an entirely new or improved tool, but may also be just a change in a step that is performed to complete the job. A patent applicant does not need to have a complete understanding of the job, or even be a construction professional, to develop an idea on how to improve the job.

What does this idea improve?

Most patents are called “improvement” patents. This means the idea behind the patent improves on existing construction technology. Patents are evolutionary, not revolutionary. For example, imprinting wet concrete with a set of stamps that each have a decorative pattern or design on a bottom surface of the stamp is well known. The process begins by placing a first stamp on the concrete so that the design on the bottom surface makes an imprint in the concrete. A second stamp is then placed next to, and partially overlapping, the first stamp so that the imprint made by the design on the bottom surface of the second stamp matches the imprint made by the first stamp. The construction professional manually aligns the second stamp with the first stamp. Once the stamps are removed from the wet concrete, any misalignment between adjacent stamps becomes readily apparent. While reworking areas of the decorative surface, the construction professional may come up with a new idea, such as adding magnets to the overlapping portions of the stamps. The attraction between overlapping magnets might help to align the adjacent stamps, eliminating rework.

Is this an improvement over what is “known” in the industry?

Even if the idea does improve on existing technology, the USPTO will determine whether the idea is worthy of being patented, based on a comparison of the idea to already-known ideas. If the USPTO decides that the idea is “new” and “non-obvious,” the USPTO will grant a patent for the idea. More than 50% of patent applications are granted as patents. While not required by the USPTO, the construction professional may have a patent professional perform a search of existing patents and published patent applications, then compare the results of the search to the idea. The cost is much less than preparing and filing a USPTO patent application. The result of this comparison can further support the construction professional’s decision whether to pursue patent protection for the idea.

What is the commercial potential for the improvement?

If the result of the comparison demonstrates the idea meets the requirement of being “new” and “non-obvious,” the construction professional should determine the commercial potential for the improvement. A U.S. patent has a term of 20 years from the date the patent application is filed with the USPTO. For the term of the patent, the construction professional has a mechanism to stop competitors from copying the patented invention by publicizing the mere existence of their patent rights. Once competitors learn the invention is patented, the granted patent provides a significant disincentive for the competitors to practice or make the invention. During the 20 year period, the construction professional is able to maintain profit margins on the patented product because competitors are prevented from simply copying and selling the patented product at a lower price.

In rare cases, the construction professional may need to enforce the patent. Enforcement often stops short of a lawsuit, and instead begins and ends with sending a cease and desist letter to the competitor.

Patented inventions in the construction industry, unlike in the volatile consumer electronics industry, are often relevant and desirable for the term of the granted patent. In this way, the financial investment to obtain a patent is effectively spread over the 20 year life of the patent.

by James F. Herkenhoff
James F. Herkenhoff is a registered patent attorney and partner in the San Diego office of Knobbe Martens. He focuses on client practice and represents clients in diverse stages, from start-up companies to Fortune 500 companies. Mr. Herkenhoff has developed patent portfolios and completed due diligence and agreement work that has helped several clients achieve significant business goals.

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