Does Your Idea Qualify for a Patent?
You may have an idea, and you want to protect ownership of that idea. Before you start the complex process of applying for a patent, you should carefully determine whether your idea is patentable. The U.S. Patent and Trademark Office (USPTO) has strict eligibility requirements when it comes to patents, and the following is just a brief overview of what may be patentable. The best way to determine the patentability of your idea is to discuss it with an experienced intellectual property attorney.
There are five primary elements of patentability in the United States, which are as follows:
1. Your idea must involve patentable subject matter, which can include a new and useful machine, process, manufacture, or another type of physical composition. Some examples of patentable subject matter include:
• Electronics and machines
• Processes for business or operations
• Business methods that have tangible results
• Computer hardware or computer software with a tangible and useful result
• Sport and recreation equipment
• Fabric designs and blends
• Pharmaceuticals and medical equipment
• Man-made bacteria (note that organisms occurring in nature are not eligible)
• Human genes that were isolated (as they cannot be naturally isolated)
Generally speaking, the subject matter has to involve something designed by a human that has a concrete result.
2. If you are seeking a utility patent, your idea must be for an invention with usefulness or “utility.” Moreover, the usefulness must be foreseeable now, and may not simply be potentially useful sometime in the future. For example, you cannot get a patent for a medication idea when there is no scientific support for its effectiveness.
3. Your idea must be for a new or “novel” invention. This means there must not be an existing patent or published description for another invention with all the same major elements as yours. You can improve on existing inventions, but you cannot get a patent for a product that has been described in a publication, available for public use, or on sale for at least a year. This is one reason you should never delay speaking with a patent attorney.
4. Your idea must be for a non-obvious invention. This is often the most difficult element to satisfy and a main reason that patent applications get denied. The basic question you should ask is: Knowing accessible and existing information, is your idea an obvious next step? For example, are you merely combining two or more existing patents to make a single invention? If so, the USPTO may deem it too obvious for a new patent. Instead, your idea must take an inventive leap from existing products, processes, or technologies.
5. Finally, you must not have disclosed your idea to the public before applying for your patent. If your idea is already published or for sale, it is already public knowledge and you may be denied.
Meeting the eligibility requirements for a patent is challenging. However, if you go ahead and produce your invention without a patent, you may lose the ability to ever obtain one. In this situation, you should discuss the possibility of a provisional patent with an experienced lawyer who fully understands your options.