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How to know if you can obtain a patent

Patenting an invention can provide many important legal protections. However, it can be difficult to figure out whether a particular invention is eligible for a patent.

The law sets forth five basic requirements. In addition to consulting an attorney as to whether a product meets them, an inventor will likely want to consider whether obtaining a patent at this time will serve his or her business goals.

1. Patent eligibility

The first requirement of patentability is that the invention is patent eligible. This may sound rather circular; however, patent eligibility is not the same as patentability. The law lists several specific types of inventions that are patent eligible: machines, manufactured products, compositions of matter or processes. This is a broad category that courts have generally interpreted to include basically anything that can be invented. Conversely, courts have stated explicitly that one cannot patent abstract ideas, natural occurrences or laws of nature.

2. Utility

The second requirement for patentability is utility: The invention must work in a way that achieves some useful purpose. To fulfill this requirement, a patent application should describe a specific use the invention serves. The claimed use should also be technologically feasible.

3. Novelty

Thirdly, a patent application should show the invention is new. Novelty can be a complicated issue, as most inventions build on others or serve as improvements to existing inventions. The question of the specific degree by which an invention must differ from previous ones can involve a high level of legal and factual analysis. It is important to note that, currently, U.S. law operates on a first-to-file basis.

4. Nonobviousness

The fourth requirement states that the invention may not be obvious. Generally, this means you cannot take an existing invention, add something obvious or trivial to it and then call it a new invention. Here, obvious means an addition or improvement anyone with reasonable knowledge of the field would have thought of.

5. Adequate description

Finally, the patent application must provide enough detail to allow those with knowledge of the particular industry to produce and make use of the subject matter.

On behalf of Crockett & Crockett posted on Friday, December 1, 2017.

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