Just like any application, inventions must meet requirements- five, in fact- to be patentable.
Ask yourself:
1. Patentable Subject Matter: Is the invention patentable subject matter (a whole different story)?
2. Utility: Does it provide any utility? (think the not so useful Perpetual Motion Machine)
3. Novelty: Can the features of the invention be anticipated based on a previous product?
4. Can it be described with the particular language so that skilled professionals in the field can understand, create, and own the invention?
And a drumroll for...
5. Obviousness: is it obvious?
Let's understand what this means. Even outside of the realm of the United States Code, it is difficult to objectively assess obviousness, which is critical to patentability. After reading a couple blogs online, I decided there are three ways I can phrase this, since they are often overly wordy.
1. If the differences between the invention seeking patenting and prior art are such that the invention would have been obvious at the time it was made to a person having ordinary skill in this art, the said invention is deemed obvious, which means...
2. An obvious invention is when several references knowledgeable about the field would look at your invention and consider it already known. A combination of their predictable and non-unique references and skills would create this invention. Let's look at an example...
3. Let's say you invented X+Y. Both X and Y are known in prior art. So if people skilled in X and Y looks at X+Y, they would consider the invention already known, therefore it is considered obvious.
Check out some examples in my next post.
On the concept of obviousness, do you know if this is a concept that varies greatly across countries? I could definitely imagine a scenario where something that is obvious to one culture is not obvious to another. In that case, the patent will be approved in one place and not in another, further affecting how a product hits the market.
ReplyDeleteI also am curious on this topic. For some countries, it may be obvious to them while it may not to other countries. This topic is subjective and controversial because there are many variables that one should be accountable for. I wonder how this plays over international level as well. I have seen many patents that were invalidated even though they were approved previously.
DeleteGoing off of that, I think it'll be interesting to see how "obviousness" is perceived differently across different states in the US. That could explain why cases like KSM happened, as the decision was reversed multiple times until it reached the Supreme Court.
DeleteI definitely agree that it is important to assess evidence of obviousness, novelty, and utility. However, certain aspects should be weighed more heavily than other features. If the invention is not novel or non-obvious, the practicality of the device would not be important.
ReplyDeleteIn looking at patent claims, it is important to ensure the composition such as if the invention device is strongly supported. Methods are also important to look at but the composition should not lead to any doubts of uniqueness. It is important that the composition is novel enough to be a contribution but not obvious to the point that an expert can easily accomplish it. In this sense, devoting a lot of time to getting the right wording in the claims could help avoid any doubts that the USPTO could have.
Although it may have not been brought up at the initial examine by USPTO, can't patents be invalidated in the future? For instance, Microsoft's patent was invalidated years after even though it was passed. It's definitely important to assess evidence of obviousness, novelty and utility like you said. All these components make a strong claim for the patent.
DeleteYour post makes me think of whether patenting something obvious is actually detrimental. When patenting something obvious, the idea is to create a dangerous patent that can be used to troll other entities. However, the process of patenting is costly. Although the line between obviousness and non-obviousness is blurry, there are situations in which patents can be easily questioned and negated.
ReplyDelete