For example, if apple get a patent on an idea, and I already had that idea and didn't get a patent for it, and I went ahead and open a company that makes a product based on my idea, can apple sue me for intellectual property infringement? Even if I didn't steal their product secret, but I used my idea to make a product similar to apple's.


If, in your example, Apple filed for the patent before you commercialized your idea then yes you can be sued for infringement. It doesn't matter if you thought of the idea independently or even before the patent filing. If, however, you commercialized or even publicly disclosed your invention prior to Apple's patent application date, then it would constitute prior art and could invalidate the Apple patent. You could still be sued, but would likely win in court.

I should point out that infringement means implementing each and every step of at least one claim in a patent. People often over estimate how broad patents are. Long claims are actually considered narrower than short ones. As always, I suggest consulting with an actual patent attorney in matters of freedom to operate.

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Eric's answer is generally correct, except that you used a term in your question and I want to respond to that particular term.

Patent applications, by their very nature, are not "secret". If Apple had filed an application, there would be nothing "secret", except during the period of time between when the application is filed and when it is published.

On a side note, an "idea" isn't patentable. What is patentable is a specific embodiment of that idea. "Ideas" are often the easy part, the hard part is devising a solution to whatever problem the "idea" is attempting to solve. I was once a part of a patent team which authored several dozen applications all of which solved the same problem, based on a single "idea". So, if your "idea" has multiple implementations, all of which meet the basic patentability tests, your implementation of the "idea" would be patentable.

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  • "your implementation of the "idea" would be patentable" is not quire correct either. Claims are much more abstract than your actual physical implementation. – George White Jul 20 '19 at 22:06
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    Right, but a patent isn't based on a =physical= implementation, it is based on the claims, which you rightly point out are themselves abstract. Hell, you don't even have to have a physical implementation to receive a patent. I have a patent on something that is utterly pointless until some other patents of mine start being implemented (in the sense of "deployed as actually existing things"). Aren't patents fun? – Julie in Austin Jul 20 '19 at 22:20
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    The phrase should be "ABSTRACT ideas are not patentable" (along with "natural phenomena" and "laws of nature").The word "idea" alone is too vague and general. – Chris Jul 21 '19 at 2:54
  • I think we’re bantering semantics, but the primary definition of “idea” is “a thought or suggestion about a possible course of action.” Whenever I’ve mentored (possible) inventors, the usual conversation starts with “I have an idea ...”. My goal — without becoming a co-inventor — is to help the individual embody their “idea” so it becomes a disclosable invention. Once they’ve demonstrated that their “idea” is more than just “a thought or suggestion” we proceed with the usual process of strengthening what they have so it provides our employer with the maximum value. – Julie in Austin Jul 21 '19 at 12:08
  • As an aside, when I’m working with someone who has proven ability in producing patentable ideas, we jump straight to embodiment. Getting someone past the notion that “ideas” are patentable is — in my experience — critical to developing “invention” as a skill. I sat on 3 invention review boards at a previous employer and we got a lot of “ideas” and it sucks to explain to someone that an “idea” isn’t enough — they have to be able to turn that “idea” more concrete. – Julie in Austin Jul 21 '19 at 12:18

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