What Can I Get Patented

What Can I Get Patented?

Patents can generally be awarded for any novel and useful invention or improvement. “Useful” is a fairly minimal standard, and largely boils down to whether or not someone could read the patent and actually make the invention the patent discloses – it could be practically useless in real life, but so long as it’s possible to make and use the thing, it’s “useful.”  “Novel” is a legal definition found in the country’s patent laws and is also a fairly minimal standard.  Novelty simply requires that the invention, exactly as disclosed in your patent application, is not fully contained in a single published document, whether that’s another patent document, a journal article, a technical white paper or other documents.

Patentable inventions can range from completely new and never-before-seen technology to a simple improvement in a well-known machine.  Patents can be granted for physical inventions, production processes, chemical compounds, software that improves computer functioning, and more.

But it turns out some inventions don’t even have to be useful – the patent office also grants patents on non-utility designs.  A design patent can be granted for a new decorative and non-functional design, such as the “look” of a crystal lamp or of a hardwood furniture piece, and this helps prevent others from copying your unique design for your products.

So why is it usually so hard to get a patent?

Most patent applications fail because they fail the “obviousness” test.  Your exact invention may well not have ever been made or invented before, but it may also be an obvious variation of something already well-known or the obvious product of combining two or more existing inventions.  For example, porcelain and glass are both well-known as electrical insulators.  An invention for an electrical device that does nothing more than substitute porcelain for glass would be obvious for someone to try, and thus fails the obviousness test.  If a patent examiner can find all the elements of your invention across two or more published documents or determines that your variation would be “obvious to try,” then your application will be rejected.

Patents sometimes fail because they claim, “patent-ineligible subject matter.”  Several classes of things, by law, cannot be patented, such as mathematical or scientific theories, abstract ideas, discoveries of naturally-occurring things, and so on.  Software patent applications frequently fail because of this test.

Experienced patent attorneys can help you determine if your invention is patentable and work with you to navigate the patent examination process toward a successful grant of a patent on your invention.  They will also work to ensure the broadest scope of protection possible for your invention while also ensuring that your issued patent is defensible against challenges from potential infringers.

Mark Kittel

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