Patents are often discussed, but more than any other type of intellectual property, usually misunderstood. Simply stated, patents are a right granted from the government to exclude others from competing with the patent owner. To obtain a patent, a number of requirements must be met, but if they are met, the government grants the patent owner the right to exclude others from making, using, selling or importing the patented technology. Patents cover an invention whether it be a machine, an apparatus, a method or process for making something or an improvement on any of those.
To qualify for a patent, the invention must be novel. That means it must be “new.” In looking at whether it is new, you could look at other patents around the world, you could look for what is being sold or publicly known such as a internet search. Anything which is already known or already publicly available, then it may not qualify as being novel. Ultimately in deciding if it is patentable, it is up to the government to determine if it is new.
Most inventions are simply improvements on existing technologies and but these differences alone may make it new. However, another requirement of patentabilty requires that the invention be nonobvious. In layman terms, I like to think that nonobvious means that something must be significantly different. It must be more than just a small difference from what is already known. This significance can be in terms of changes or impact. For example, using water in one invention and using saltwater in another improvement may be merely trivial. However, in some cases, this can be a huge difference when it comes to drinking water. Some courts have indicated that what would be common sense to use by those skilled in the art, although different, would not qualify as being patentable. So if saltwater would be common sense to use for those with the relevant background in solving the same problem using an existing invention, then it may be obvious and therefore unpatentable. However, if saltwater would not be readily appreciated by those with the proper background to solve the same problem using existing inventions, then it may be nonobvious, allowing the invention to be patentable.
Unlike the obvious issue, the third and fourth requirements are relatively straight forward. An invention must be useful and must be of patentable subject matter. Useful means it must have some use. Use is a low threshold, but a perpetual motion machine which defies the laws of physics device are generally excluded.
That an invention must be directed towards patentable subject matter generally means the government, as a matter of public policy, has restricted what types of inventions are protected by the government. The government can and has made a decision that some things shouldn’t be regulated by the government. Some exclusions include mathematical or scientific principles, living beings and gambling machines. Some countries exclude medical procedures under the theory that no one should be allowed to limit what treatment a patient can receive.
With respect to a patent, the timing of filing is vital. If the inventor publicly discloses the invention or offers products for sale he or she may be prevented from later obtaining a patent. In addition, the U.S. is now a first-to-file country, which means priority of a patent is given to the first inventor who files a patent application on an invention. The date of invention is no longer decisive. To protect your rights, we recommend early filing and a visit with one of our experienced patent attorneys to discuss how to file a patent application.