You can’t patent that! It’s all been done before!


In 1899, the Commissioner of the US Patent Office[i] famously declared that “Everything that can be invented has been invented”. In 2004, the U.S. Patent Office issued 181,000 patents and new applications, meanwhile, are being filed at an increasing rate of about 400,000 per year[ii].

As Sun Tsu perceptively noted thousands of years earlier, “There are not more than five musical notes, yet the combinations of these five give rise to more melodies that can ever be heard.”[iii] So too, the permutations of invention are limitless.

There will always be those who wish to enforce their opinions upon others, no matter how mistaken or uninformed their opinions may be. Determining patentability is complex, even for informed Patent Attorneys. When new products are developed, there are frequently patent “naysayers” who spout their uninformed opinion that “it’s all been done before” and that “you can’t get a patent for that”, without really knowing what actually has been done before and without understanding the requirements for a patent. These patent naysayers can exist either internal or external to a company as explained further below.

Many companies that spend a lot of money developing their ideas have not spent a comparatively small amount to protect the product embodying these ideas because “someone” was of the misguided opinion that the ideas have “all been done before”. Technical obstacles are often overcome during product development and customers desperately await features that a new product will offer. If it had in fact “all been done before”, the reality may be that there would be no need for the new product at all. Innovative companies release new products with a view of filling a market need for these new products that is not currently filled.

 I once received a frantic phone call from a client who, in spite of having filed a patent application for his invention, was told by a passerby that he could not get a patent for his invention because it had “all been done before”. But who was this passerby? What exactly did he know about what had been done before? Furthermore, what did he know about the content and scope of the patent application? The answer to these questions was of course unknown. However the answers are immaterial, because anyone who looks at a product and instantly determines that a related patent cannot be granted either has an agenda or is a damned fool. As previously explained, patent law is complex and a determination as to whether or not a patent will be granted should only be made by a patent professional acquainted with all of the facts which can often be difficult to prove.

The next time you hear a naysayer mention that it’s all been done before, be sure to ask yourself whether that person has an agenda or is indeed offering an informed opinion. Perhaps that person is trying to intimidate you or reassure themselves that they will not be infringing your patent? In any event, it may at least be worthwhile talking to a patent attorney to get an informed opinion.

Further, the patent application itself is often deterrent enough to copying, even if ultimately it fails.

[i] Charles H. Duell
[ii] The Patent Epidemic, Business Week, January 9, 2006. Available from
[iii] Tzu, Sun., “The art of war”, Signature Press, 2010 2nd ed, p65.

Back to Articles

Contact our Expert Team

Contact Us