Whenever I speak with a new inventor, the first question they ask is "Is my idea patentable"? I usually tell them "I don't know" because in order to truly answer that question I would have to do a patent search and even then I cannot be 100% certain as you never know what type of "prior art" the patent office may find. A new invention can be patented in the United States Patent and Trademark Office (USPTO) if it meets the following patentability requirements:
- Novelty: The invention must be unique and the inventor must be the first person to create the invention.
- Non-Obvious: The invention must be significantly different from similar or related inventions.
- Enabled: The inventor must be able to explain in detail how to make and use the invention.
- Allowable Subject Matter: The inventions must fall within the USPTO guidelines for patentable subject matter (ie: laws of nature and abstract ideas cannot be patented). NOTE: Many types of software related inventions are now very difficult to get allowed under this category of “allowable subject matter”. In many areas the approval rate is less than 5% for some types of software inventions such as e-commerce. Here is a short post on this: http://patentfile.org/the-slow-death-of-software-patents/ As these rules and guidelines are changed frequently, its very hard to know for certain if your idea may fall under this non-allowable category and consulting with an expert may be a good idea.
Is my idea patentable or will it get rejected? Normally (in 95%) of all patents filed you will get either a Novelty rejection (in patent speak this is called a "102" rejection) and/or you will get an Obvious rejection (called a "103 rejection"). The good news is that you have a few chances to try and argue or overcome these rejections (see videos below). Usually this is done by finding one or two components or parts of your invention that the patent examiner could not find in any other prior patents or publications. For that reason, inventions that have lots of pieces and components are sometimes easier to get approved.
Warning: Simply taking fairly standard pieces that are already used for similar things and bundling them all together usually will not make your idea patentable. For example, a few years ago I wrote a patent for a hunter who created a new hunting tree stand. His stand had it all, folding seats, cup holders, cooler shelf, folding ladder, the whole works! Although nobody else had created a tree stand like his, the patent office found lots of examples of other tree stands, one with a folding seat, one with a cup holder, etc. In this case it would have been very hard to get the patent allowed since the patent office is allowed to make "obviousness" rejections when you are simply combining a bunch of things that have already been done before in the same field. Now, if his tree stand had something very unique like a new type of clamp or some clever way to attach it to a tree than it may have been allowed.
Here are two videos I made on the patent rejection and response process:
President - PatentFile, LLCBrad Fach has over 15 years of experience writing and filing patent applications with the US Patent and Trademark Office. He has personally filed over 500 patents in all technical areas ranging from consumer products to software and biotechnology. Read more....
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