Patentablility is best left to the legal department, however there are some general rules that you can follow to determine if your application submission is a patentable invention. The rules fall into 4 broad categories and include:
-
Statutory Class:
Is the invention in a statutory class? Is it a machine, article, process, composition, or a new use of one or more of these items? Many software and system patents are granted as part of a process description. The patent office makes it clear that mathematics and algorithms are not patentable, but if these are described in terms of a process, a patent can be granted.
-
Usefulness:
Is it useful? The patent should provide some utility. This criteria is rarely used to reject a patent application. Examples of rejection would be perpetual motion machines. This category is used to reject other types of inventions such as those associated with nuclear weapons.
-
Novelty:
Does it have novelty? Is there a new physical feature, new combinations of old features, or new use of an old feature (different application of prior art)?
-
Not Obvious:
Is it not obvious? Does the novelty provide new and unexpected results? This is where many engineers, especially software engineers assume that there idea will fail to achieve patentablity. The patent office however, follows a set of rules to determine this characteristic and what is obvious to the inventor may not be treated as obvious in the patent office.
Some of the criteria used to determine if an invention is not obvious includes:
- Succeeds where others fail.
- Successfully solves a problem never before recognized.
- Successfully solves a problem previously thought or found to be not solvable.
- Attained commercial success.
- Classified in a small class where a small advance in the prior art carries great weight.
- Omits an element in a prior art without loss of capability.
- Contains modification not suggested in the prior art.
- Provides advantage which never before was appreciated.
- Provides operative result previously prevailed by failure.
- Implements an ancient idea, but never implemented idea.
- Solves long-felt, long-exiting, and unsolved need.
- Contray to the teachings of prior art.
A major criteria used to determine if an invention is not obvious is to determine if the invention is based on
new combinations of prior art
and includes:
- The combination is not expressly suggested or implied by the prior art.
- The prior art references could not be combined physically.
- The references would not show the invention even if physically combined.
- The prior art references would not operate if combined.
- Over 3 references would have to be combined to show invention.
- The references teach that they should not be combined.
- Awkward, separate, or involved steps are required to combine the references.
- The references are form different technical fields and are combined to form the invention.
- Synergism, the results are greater than the sum of the results of the references.
The US Patent Office provides additional information on
what can be patented
. To be more certain if your submission is patentable, learn a little bit about the patent process. It is better to error on the side of submitting an idea and finding out that it is not patentable than to risk losing something very important that can change everything, for everyone, everywhere, forever, hopefully for the positive.
The steps to submitting a patent application are outlined below.
Learn about the patent process:
- If you think you have a patentable idea, develop a 1 page description, date and sign it as soon as possible.
- Access the contents of this
Patent Guide
so that you have a broad overview of some of the issues.
- Perform a preliminary patent search using the Boolean Search engine (
U.S. Patent Boolean Search Page
) from the US Patent Office.
Related Books
A good collection of books on patents, copy rights, trademarks, and intellectual property.
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