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What Is Patentable?
Michael J Foycik Jr
by Michael J Foycik Jr.
November 15, 2013

The author is a patent attorney with over 28 years experience in patents and trademarks. For further information, please email at IP1lwyr@gmail.com, or call at 877-654-3336.
Wonder what is patentable? When a good idea could becomes a valuable right? If so, read on!

The legal standards are simple to state: anything new an unobvious. But, what is new? And, what is unobvious? This is discussed as follows.

Anything “new” would include a new arrangement of old parts, an arrangement which achieves a new result, and any improvement to an existing device. These all may be deemed to be new and can therefore support a patent application. A very small improvement is still new under this standard.

Make something useful out of standard hardware items? That's ok, as long as it is new. How do you know it is new? Well, if you didn't copy it, and haven't seen one anywhere, then it could be new. A patent search might – or might not – turn up relevant prior art, so that's another way to try to guesstimate whether something is really new or not.

The next item, though, is whether the invention is unobvious. That is a legal determination which is typically made by a patent examiner in the course of his/her duties. This standard may vary greatly from one person to the next, but in the end the examiner's decision is the one that counts.

So, how does a patent examiner decide what is unobvious? Easy – from a study of the relevant prior art. The examiner is normally a subject matter expert, and therefore can locate the most relevant prior art patents and publications. Even a small change may rise to the level of patentability, if there is no teaching or suggestion in the prior art to suggest that modification.

There are non-statutory areas which cannot be patented: it isn't possible to patent a law of nature, for example. In the past, that might have included business methods and computer software, but that has changed: some business methods and computer programs may be patentable depending on what they involve and how they are claimed.

This is not legal advice – for that you'd need to consult a registered U.S. Patent Attorney and discuss the specifics involved.

The author is a patent attorney with over 28 years experience in patents and trademarks. For further information, please email at IP1lwyr@gmail.com, or call at 877-654-3336.
 
 
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