What Are the Requirements for a Patent?

As I have mentioned before, 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 regarding the definition above that need to be explained. 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, if you describe the invention in a printed publication, use it publicly, offer it for sale, or actually sell your invention, you must apply for a patent within one year.  If you do not, you forfeit your rights. In fact, if you do any of those acts, you will most likely loose your right to patent your invention in any other country except the United States.  For that reason and under the new America Invents Act, I recommend that you file an application, either a regular utility or a provisional, before you do any of the above to preserve both foreign and domestic patent rights.

Finally, even if the invention has one or more differences from prior inventions, it still may not be patentable, if the differences would be considered obvious. As stated 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 I Can Help

Of course, this article only provides a broad overview of the requirements for obtaining a patent. Before embarking on the patent process, there are many other factors that must be considered.  I can provide, in many instances, a flat fee or pre-negotiated costs for a United States provisional or regular utility patent application.  If you need help to prepare and file a patent to protect  your invention or know someone that can use my help, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities.  Connect with me on Google +


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