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Is My Idea Patentable?
Mark Levy

Before you can file a patent application, you should determine whether your idea is patentable in the first place.

For the experienced inventor, that observation is almost too obvious to bring up. Yet it's alarming when we hear of well-meaning individuals pursuing patents based on zeal or (sometimes) greed, without the slightest idea whether their inventions are patentable. The patent scammers in our industry are well aware of that lack of judgment, and it’s a key reason they’re alive and well.

Happily for us, patent law has pretty well-known rules of the road for weighing what is patentable - that is, what the U.S. Patent and Trademark office will accept. Although you’re never guaranteed a patent, applying the tests of patentability can show whether your patent application will be strong or weak.

Following are primary requirements of patentability. If your invention doesn’t pass all of them, it cannot be granted a U.S. patent.

Three Requirements For A U.S. Patent

Is your idea novel?

The answer must be yes. If no one else ever thought of, or invented, your idea anywhere at any time throughout history, then it's possible your idea is novel. To ensure your idea's novelty, you need to perform a patentability search or get one done. For more on searching, please see my article, Should I Do A Prior Art Search? posted on our website at http://inventorprise.com/content_articles.php

One exception: An existing invention used in a new way can be patented as a method or process. As an example, the compound DDT was first synthesized in 1873. Yet its use to control insects wasn’t discovered until 1942 - 69 years later. That discovery made DDT patentable as an insecticide, which helped increase worldwide food production and reduce disease. The work on DDT also earned its re-discoverer, Paul Hermann Mueller, a Nobel Peace Prize.

Is your idea obvious?

The answer is no; your idea should not be obvious. Being ‘non-obvious’ means a person with a normal level of ability in the area of the invention would not think the invention was obvious, based on that person’s skill and experience with the subject matter.

Fortunately, the standard for non-obviousness is not especially high. If it were, the USPTO would be issuing a lot fewer than the current 3,500 patents a week. Still, non-obviousness can be tricky and this is where we have most problems getting patents granted. Should the USPTO reject your patent application for reasons of non-obviousness, here are defenses others have used to successfully argue their cases:
  • Unexpected results - Your invention works much better than what's existed, making for an unexpected result.
  • Long-felt need - People needed your idea a long time, yet no prior solution existed.
  • Teaching away - Approaches to solve the problem had been going another direction, and yours is the first novel approach.
  • Commercial success - If it's successful, then it would’ve been made by now.
Is your idea useful?

A patentable invention must be useful. A machine that can’t operate or do its intended purpose would not be useful, and therefore would not be patentable. Almost anything you invent would have to be useful or you wouldn't bother inventing it. Some people do try to get around this. In one long-ago case, someone invented a new material containing precious metals including gold. The inventor said it could be used as a ballast for a ship. Of course, because it would be the most expensive ballast ever made, it wasn’t useful. With no reasonable use for the metallic composition, the patent was denied.

What's Not Patentable

Equally important to knowing what you can patent is knowing what is not patentable, such as:

Expressions of ideas - These are copyrightable, not patentable. I can write a novel, produce a film, or sing a new song and get them copyrighted, but I can't patent them.

Perpetual motion machines - Over the years there’ve been equally whacky and serious attempts to create machines that run without energy, or run forever with a push. Thanks to high school physics, we know that perpetual motion devices always fall victim to common gravity or friction. Years ago I heard someone had proposed an electric car that would run on a single battery charge. The idea was devoting one of the car’s wheels to an onboard generator which also charged the batteries propelling other wheels. Since no device can generate more energy than it uses, the person behind the idea was actually thinking up a perpetual motion machine, which will never get a patent no matter how elaborate the device.

Printed matter - Whether it’s a novel, song lyric or slogan, copyrights and/or trademarks cover printed material, not patents.

Laws of nature - Such as trying to patent gravity or electromagnetic energy.

Naturally occurring plants and substances - I recently heard a rumor that big corporations were going into rain forests and getting patents on every plant imaginable in the hope the plants might someday cure something. It isn’t happening because plants found in nature aren’t patentable. If one were to prove a new use for a plant or a byproduct, those might be patentable. For example, if you could show that aloe can effectively replace auto wheel grease, its new use could be patentable. But you can’t patent a rare plant because you hope it could someday cure the common cold.

The Times They Are A-Changin’

What’s considered patentable has changed dramatically to the point now that patent law is becoming a moving target.

During the past 25 years, the USPTO has steadily modified its standards so things that weren't patentable before are fair game now. Patenting of software is an example, although the USPTO itself has generated controversy by granting some software patents that others are fighting to overturn. Bio-technology is another rapidly changing area, as is patenting methods of doing business. Clearly those were not patentable until fairly recently. But in hindsight, if they can meet patentability criteria, it makes perfect sense to include them.

In sum, my best advice is that you focus your innovation on novelty and non-obviousness. That's been the approach by thousands of inventors for literally hundreds of years to the benefit of us all.

Want to know whether your idea is patentable? If an ordinary person were to look at your invention and say, "Very clever, I would have never thought of that," then you've most likely reached the level of patentability.

For more information on patentability:
www.uspto.gov/web/offices/pac/doc/general/index.html
www.uspto.gov/web/offices/pac/doc/general/index.html#whatpat




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