Patent FAQ: What Are the Conditions for Obtaining a Patent?

In order for an invention to be patented, it has to be new. But what exactly does that mean?

Under U.S. patent law, an invention cannot be patented if: “(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent,” or “(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country more than one year prior to the application for patent in the United States …”

There are a few points to highlight with respect to the definition above. First, you must consider the invention’s novelty both in this country and abroad, although different standards do apply. If the invention has been described in a printed publication anywhere in the world, or if it was known or used by others in this country before you created it, the invention is not patentable.

Second, time is of the essence. If you describe the invention in a printed publication, use it publicly, or offer it for sale, you must apply for a patent within one year. If not, you forfeit your rights.

Finally, there is yet another consideration. Even if the invention involves one or more differences, it may still not be patentable, if the differences would be considered obvious. As explained by the USPTO, “the subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention.” Obvious differences would include changing the size or color of the invention.

How We Can Help

Of course, this post provides only a broad overview of the conditions for obtaining a patent. Before embarking on the patent process, it is often advisable to consult with an experienced patent attorney.

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