PATENT INFORMATION

Not all things are patentable. Mere ideas are not patentable, and are not protected intellectual property rights. The patent laws require that patents are granted only on inventions that are in fact appropriate. Typically, patents protect:

• a process,
• a machine,
• an article of manufacture, or
• a composition of matter.

Inventions that occur in nature (i.e., “products of nature”) are typically not patentable. They exist without any human input or ingenuity 35 USC § 101.

Inventions must meet statutory requirements. Patents must be new or novel, useful, and nonobvious (35 USC Sec. 101).

• Any new or novel invention is one that did not exist nor was publicly known at the time of invention. In order to determine this factor, the USPTO and the patentee look to what is labeled “prior art.” Prior art includes any publicly known or knowable information, including: printed publications; patents; a public use or sale; or general knowledge. 35 USC § 102.
• For an invention to be useful it must provide some benefit or advantage to society, and actually work. If the invention’s purpose is immoral, against public policy, frivolous or illegal, then it is generally denied as not useful. Whether the invention is commercially sound or successful is not a factor in determining utility. 35 USC § 102.
• An invention must also be nonobvious. This factor can be troublesome and difficult for intellectual property examiners to determine. The factors considered in the inquiry are often the subject of patent infringement cases. As a result, the test can often change. The purpose behind the requirement is to prevent exclusive patent rights from being granted to someone who makes only minor or obvious changes to what existed before. The theory is that if anyone could have come up with the change, then one person should not get the privilege of solely controlling the public use of that change. 35 USC § 103.

Even if an invention is otherwise patentable, an inventor cannot receive a patent if the inventor acted in a manner which compromised the invention. These are known as statutory bars. Prohibitions against patent grants include:

• If the inventor is not the true inventor; that is, the inventor did not contribute to the development of the invention.
• If the inventor “abandoned” the invention; that is, the inventor expressly or impliedly failed to pursue the invention.
• If the inventor publicly disclosed (through publication, use or sale) the invention more than one year prior to the date of the application. The invention would be deemed not new or novel. The U.S. patent laws give the inventor a one year grace period from any such public disclosure in which to file the patent application without jeopardizing patentability. Foreign patent laws do not have this same grace period.

For more patent information or patent help, visit the USPTO website.

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