Patents: Make Sure Your Idea Is Useful, Novel, and Non-Obvious
Any startup or small business owner who has had copycats steal their ideas knows patent protection is important. Non-disclosure agreements (NDAs) can help keep ideas within a small business. Still, they do not grant a property right to an idea, concept, or invention. A patent grants property rights to its inventor, who becomes a patent holder. This allows a person to sell, license, and police their work.
In order for a patent claim to be valid, it must propose a concept, idea, or item that is “useful, novel, and non-obvious" under patent law. These terms seem vague. They have specific legal meanings that correspond with federal patent law. This article explains the terms "useful," "novel," and "non-obvious," as they relate to patent criteria.
What Are the Types of Patents?
A few different patents protect property rights in the United States.
- Plant patent: A small business uses this patent to protect a new asexually created plant. An example of this was the Irish potato.
- Design patent: An inventor uses this patent for a new and useful ornamental design of an article of manufacture. This means these patents cover how a new product looks in a physical form. Usually, this means the shape or look of the item. An example of this patent was the original glass Coca-Cola bottle.
- Utility patent: This patent grants a property right to new and useful composition of matter, machines, and processes. It is the most common type of patent. These patents range from computers to chemical compounds.
Is a Business Idea Patentable?
A business idea is only patentable if implemented into a product, process, or design. Even then, that end product must be useful, novel, and non-obvious.
The term "useful" means that the subject matter has a useful purpose. It also requires that the item is operable. Useful improvements and useful processes can get a patent. A machine that can't perform its intended purpose is not useful in the ordinary sense of the word. The U.S. Patent and Trademark Office (USPTO) has issued examination guidelines to determine if it's useful. These include the following:
- An invention has a well-established utility if (i) a person of ordinary skill in the art would immediately appreciate why the invention is useful based on the characteristics of the invention (properties or applications of a product or process), and (ii) the utility is specific, substantial, and credible.
- An applicant provides one credible assertion of specific and substantial utility for each claimed invention.
- Any rejection based on lack of utility includes a detailed explanation of why the claimed invention has no specific and substantial credible utility. Whenever possible, the examiner provides documentary evidence.
"Novelty" is strictly defined by patent law. It refers to the originality of the idea. An invention cannot get a patent if:
- Others in the United States knew or used the invention before the patent applicant invented it
- Any printed publication described the invention, or there was a patent before the patent applicant invented it
- A printed publication in any country described the invention, or the invention had a patent more than one year before the inventor's U.S. patent application
- The invention was in public use or on sale in the United States more than one year before the inventor's U.S. patent application
These rules don't prevent a person from patenting an improvement to another invention. For example, tire makers have long known the formulas for making tire rubber. But what if an inventor found a way to make tire rubber twice as long-lasting by slightly changing the chemical composition? This could be a patentable improvement as long as the difference wasn't obvious.
Even when an idea or invention is technically non-obvious, at least from an engineer's perspective, it may not meet the legal criteria. Even if a new invention differs from another patented invention, a patent may still be refused if the differences would be obvious. Non-obviousness is a sufficient difference from what has been used or described before. A regular person with ordinary skills in the area of technology related to the invention would not find it obvious to make the change.
For example, sodium chloride (table salt) and potassium chloride (a chemically similar salt) have interchangeable uses. A chemist working to improve road salt would consider it obvious to substitute potassium chloride for sodium chloride. A formula that simply made this substitution in an already patented road salt formula would not be patentable.
How Do I Submit a Patent Application?
Before you can become a patent holder, you should do a patent search on the United States Patent and Trademark Office (USPTO) website. Entrepreneurs looking to start the patent process need to file a patent application with the USPTO. The application process is difficult to navigate if you are not a patent attorney.
A provisional patent application (PPA) allows a small business owner to claim their idea, invention, or process, is patent pending. A PPA is only valid for 12 months. The USPTO does not give extensions for a PPA. This process is not as expensive as a formal application. It gives the entrepreneur the ability to work on their patent formalities without someone else claiming their idea.
You will submit a patent filing for your new product, new design, or new variety of plant. A patent examiner will review it to make sure it can continue in the application process. If so, an attorney reviewer informs you of your status or further actions to take.
Is Your Idea Patentable? Get Legal Advice From an Attorney
Even experienced attorneys find patent law difficult. If you or your small business have a valuable invention or idea, you should consider a patent. Small business owners who want to sell, take to market, or otherwise protect products or service marks should talk to an intellectual property attorney. These lawyers can help you understand the law, review your ideas, walk you step-by-step through the patent process, and help you fill out any necessary paperwork. Business owners should get started today and contact an intellectual property attorney.
FindLaw's Patents section provides additional resources and articles to help you make sense of it all.
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Contact a qualified business attorney to help you identify how to best protect your business' intellectual property.