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In order for an invention to be patentable, it has to meet a few criteria. These
criteria divide into four major areas: 1) It has to be directed to patentable
subject matter; 2) It has to be useful; 3) It has to be novel; 4) It has to be
non-obvious.
In the software field perhaps the most contentious is the first criterion, that
of patentable subject matter. US law specifies four areas that are patentable
subject matter: a machine, a process, an article of manufacture, or a chemical
compound. Natural phenomena and laws of nature are not patentable. Had Sir Isaac
Newton been living today and discovering the law of gravity, he could not patent
it (A good thing!).
The second criterion is the usefulness of the invention. A combination of a triangle,
a square, and a circle attached to each other may be very pleasing and novel but
if you cannot show it to be within the useful arts, it is not patentable.
The third criterion is novelty. In the United States, you can patent an invention
up to one year after you first disclosed it publicly or used it non-experimentally.
This is not the case in most foreign countries. In most countries the requirement
is for absolute novelty. If you published a magazine article describing your invention
and then applied for a patent a day later, you are barred by most countries from
obtaining patent protection for that invention. Therefore, it is prudent to keep
your invention secret and to begin the patenting process as soon as possible.
Instead of waiting to perfect the invention, start with the general invention
and, as improvements develop, follow up with other patent applications. In most
countries, the person who gets to the patent office first wins.
The last requirement for patentability in the United States is that the invention
is non-obvious. This legal language may be the hardest to define in all patent
law. Many inventors are often the first to declare their invention as obvious,
but they are often wrong. After all, the solution was obvious to them once they
made the inventive step, that magical moment of realizing the solution to the
problem. From then on, the development of the solution is a simple matter of grunt
work and details. However, those inventors fail to realize that the mental inventive
step is the crux of the matter. They fail to see that an invention does not need
to be of earth shattering magnitude. An invention should improve and increase
the human knowledge pool and either provide a solution to a problem or improve
an existing solution. Most people do not realize the need for a solution exists,
let alone search for that solution.
If you, the inventor, identified the need and found a solution that was not at
least suggested by others, you are an inventor that invented a non-obvious invention.
The fact that you used materials and methods that were known does not, by itself,
detract from your invention. As Chief Judge Markey once said, "Only God works
from nothing. Man must work with old elements". If your invention uses known materials
and methods in a new way that produces an unexpected result or that resolves a
need in a manner nobody proposed before, you deserve society's gratitude in the
form of a patent.
Once explained, almost everything is 'obvious', however the obviousness is judged
at the time the invention was made, and the Patent Office may not use the inventor's
disclosure as a source of hindsight. 'Obviousness' is, therefore, a constant source
of negotiations between the patent office and the inventor. A patent agent with
a deep and thorough understanding of the technology and of your invention is,
again, invaluable. An agent with such understanding can argue your case with the
PTO and place your invention in its proper, non-obvious light.
Saltamar Innovations is the best source to discuss all these issues as they relate
to your invention.