3rd party filing a patent based on an idea posted to my blog


Can a third party file a patent based on a idea I have listed on my blog and made public under a creative commons license? Are improvements to the idea patentable if the original idea was published by me under a creative commons license?


Posted 2013-07-03T11:49:26.423

Reputation: 131

Chetan, AskPatents is a web service in Q&A format where users ask for help finding prior art on US Patent Applications and US Patents and ask questions about the US Patent process. You might be asking whether someone can file a patent based on an idea you have placed on your blog. I have edited the question to reflect this idea but feel free to edit if I have misunderstood. Note that question about licenses are off-topic. Please see the [faq] for information about which questions are on-topic for AskPatents. Sorry for any confusion. – Micah Siegel – 2013-07-03T13:14:37.500

Thanks @MicahSiegel , few other queries like , can 3rd party get denial on such patent if they find it under creativecommons licence ? Or can that patent be suspended after the grant ? – Chetan – 2013-07-03T13:24:19.300



This question might be better asked at avvo.com, where you could get in contact with a local intellectual property attorney.

The answer you're likely to get there, is that anyone can file a patent based on anything. Indeed, the third party may even be able to obtain a patent based on your idea, though there are procedures you can undertake in hopes of preventing that outcome.

Improvements to an idea typically are patentable, if the combination of the improvement with the original idea is "non-obvious." Relevant law is 35 USC 102-103, which you can find at law.cornell.edu. A big caveat is that if the idea is "abstract," i.e., not perceived as sufficiently "technological," then it (and the improvement) may not be patentable. 35 USC 101.

Creative commons license doesn't have any impact on patentability - it's your prior disclosure of the idea that limits whether a patent can be obtained. Whether CCL would affect enforceability of a patent based on the open-sourced idea, is a question sometimes kicked around but not yet definitively answered. The closest relevant law (that I know of) is Jacobsen v Katzer, which is well-described on wikipedia among many other places.


Posted 2013-07-03T11:49:26.423

Reputation: 61

1A small comment - "sufficiently technological" as a way of distinguishing something from being non-abstract is more of a European criteria than a U.S. one. It would be great if we (U.S. patent law) could distinguish abstract from not-abstract in a way that could be explained even somewhat clearly. – George White – 2013-07-04T06:32:37.173