Patent Eligibility & IP Assessment in 2020
Patent Eligibility & IP Assessment is the first step in bringing your concept to market. Our initial assessment improves your chances of a successful application.
Understand Patent Eligibility & IP Assessment for a Successful Patent Application
Is your invention eligible for a patent? Call The Patent Professor® at (877) 731-5667 to find out.
Do you have an idea for a product? Are you wondering if it's eligible for patent protection? The Patent Professor® assesses all areas of your invention to determine if it's patentable subject matter and fits all criteria needed to qualify for a patent.
Our simple process ensures you have patentable subject matter to improve your chances at a successful patent application. Here's what you need to know about patent eligibility and intellectual property (IP).
What Is a Patent?
A patent is paperwork issued by the U.S. Patent and Trademark Office (USPTO) that protects your exclusive right to manufacture a product or use a process and to profit from that product or process.
Your patent protects you from competitors releasing lower-priced or lower quality versions of your novel and useful invention.
Your patent also gives you the right to improve your product or process within the scope of the patent. That means someone else can’t take your invention and make it better without first licensing the original design from you.
The Role of the USPTO in Patent Law
The U.S. Patent and Trademark Office, located in Alexandria, Virginia, is an agency in the U.S. Department of Commerce. Unlike many other government agencies, the USPTO isn’t taxpayer-funded. Instead, it operates with funds collected from patent applications.
Satellite trademark offices exist in Silicon Valley, California, and Detroit, Michigan, to help alleviate the load in the main patent and trademark offices, a reflection of the innovations that have typically come out of these cities.
Wherever you live, and wherever your business is based, The Patent Professor® will help you file your patent in one of the patent and trademark offices.
What Is Patent Eligibility?
Patent eligibility refers to whether or not your claimed invention fits the criteria to apply for a patent, according to the U.S. Patent and Trademark Office (USPTO).
Do you have what you think is a unique idea for a product? Determining if it’s patentable subject matter can be tricky. You need the expertise and knowledge of a board-certified patent attorney.
The Patent Professor® considers the criteria your invention must meet to apply for a patent and then walks you through the steps with the USPTO to apply for a patent successfully.
What Is Patentable Subject Matter?
Patentable subject matter falls under a wide variety of areas – from processes and software to machines and even chemical reactions. Understanding how the USPTO classifies your idea can help you determine if it may qualify for a patent.
Patentable subject matter falls into multiple broad categories that describe items we use, tools and machines used for building, and methods and processes created by businesses.
Business Methods – Patentable business processes and business methods describe ways of doing things that are novel and original, sometimes involving technology as a means of achieving the result. For instance, Amazon’s 1-click shopping method represents a patented business method.
Sporting Equipment – A few examples of patented sporting equipment include golf tees, baseball bats, and Frisbee flying discs.
Medicines and Man-made Bacteria –You can patent chemical processes used to create bacteria or medicine. However, you can’t patent naturally occurring organisms.
Isolated Human Genes – When scientists isolate and identify a human gene, they can patent that gene, because it is not naturally occurring in its isolated state.
Computer Hardware, Machines, and Electronics – These useful tools can all be patented.
Fabrics and Fabric Designs – Fabrics and fabric designs can be patented because people create them. For instance, if you developed a fabric as an alternative to cotton, manufactured through a specific process, you could patent both the process and the resulting fabric.
Computer Software – Software patents may be more complicated to obtain than some other patents. You can copyright software as intellectual property, but you can patent the software program only if it delivers a useful and concrete result never achieved in the same way by other software.
Three Different Types of Patents
The patentable subject matter listed above falls into one of three categories: utility patents, design patents, and plant patents.
These categories refer to the types of patents you can receive.
1. Utility Patents
A utility patent applies to nearly all inventions that are novel and useful, which means they serve a purpose to achieve an objective. Utility patents apply to:
- Business processes, software, and methods
- Machines (manufactured items that perform a function)
- Products (called "articles of manufacture," or anything that can be manufactured)
- Compositions of matter (chemical compounds and artificial or isolated genetic materials)
Utility patents last 20 years as long as you pay the fee to renew the patent annually and don’t let the patent lapse.
2. Design Patents
Design patents refer to something that may not serve a useful purpose, but is unique and decorative or ornamental.
For instance, the recliner mechanism on an easy chair could be patented with a utility patent, because it’s useful and helps achieve an objective. But the unique pattern printed on the chair’s fabric requires a design patent to protect someone from stealing its novel look.
3. Plant Patents
New plants can qualify for an oddly specific patent. If a plant is not naturally occurring, the creator can file a patent. That is, if the plant was created in a lab as a result of asexual reproduction and not ordinarily found in nature, it’s patentable.
Similarly, if a botanist discovered a plant in nature but was then able to get it to reproduce asexually – without using seeds – the botanist can patent that plant.
Like a utility patent, a plant patent lasts 20 years and prohibits others from asexually reproducing, selling, or using the plant without permission from the inventor. Tuber propagated plants, such as potatoes and carrots, can’t be patented.
Intellectual Property Assessment: What Are the Three Basic Criteria For Getting a Patent?
Your invention must qualify as patentable subject matter and fall into one of the broad categories listed above to potentially qualify for a patent.
Also, your invention must meet three essential criteria to qualify for a patent.
1. It must be novel.
Novel, the way the USPTO defines the word, describes a new invention. It hasn’t been seen, used or even described in writing before. Not surprisingly, if a patent already exists for an invention, you can’t file a patent for it.
If you’ve invented something, make sure to file for a patent within one year of introducing it to the world, selling it, using it, or even describing it in a printed publication or online. Otherwise, you may be denied the patent on your own invention.
If your invention offers a new twist on existing technology, it must represent a significant and measurable advance from the previous design.
For instance, for decades people started vehicles with internal combustion engines by putting a key into the ignition and turning it.
A keyless ignition system that operates through infrared technology and software within the vehicle represents a novel way of turning on passenger vehicles, even though it accomplishes the same objective as keyed ignition systems.
2. Your invention must be "non-obvious."
According to regulations, as enforced by the USPTO, your invention must not be obvious to the average person that works in the field. If you combined several patents in a logical order, you couldn’t file for a new patent based on the process created.
However, if you came up with a new process of doing something that represents a marked improvement and a “non-obvious” idea, you may be able to patent that invention.
3. Your invention must be useful.
Finally, to qualify for a utility patent – the strongest form of patent available through the USPTO – you must prove the invention has a function and is useful. It must have a patentable application. It must have a use.
What does your invention accomplish? Does it do something that’s necessary?
You could create a piece of modern art to sit in the corner of a living room. But if it only functions as decorative art, the USPTO likely wouldn’t grant a utility patent. The invention has no purpose other than beauty.
On the other hand, if you designed a piece of modern art that contained wireless smartphone charging technology within the top and a flat surface on which to lay your phone, the sculpture could qualify for a patent. It has a purpose.
However, since sculptures, wireless chargers, and tables all exist already, the USPTO would have to determine if your invention represented a novel and non-obvious combination of existing products and technology.
Note that “usefulness” only applies to inventions applying for a utility patent, not a design or plant patent.
What Cannot Be Patented?
Any inventions that don't fit the criteria above cannot be patented. If an invention isn't novel, non-obvious, and useful, it likely won't qualify for a utility patent.
Additionally, ideas cannot be patented. When applying for a patent, you must draw up designs and an explanation of your invention or process. Focus on what your invention is supposed to achieve and how it does it, emphasizing any ways it may be unique from its predecessors.
Remember, don't publish information about your invention or bring your invention to market without a patent. Once you've introduced your invention, you only have one year to file a patent for it.
Finally, you can't patent laws of nature, any natural phenomenon such as sunlight, theoretical plans, or the elements on the periodic table.
Can An Abstract Idea Be Patented?
Abstract ideas cannot be patented. Your patent application must show how your invention works and what it does.
For instance, “solar power” represents a broad idea and cannot be patented. But a new method for integrating solar panels into roofing tiles so that the solar panels aren’t visible from the street can be – and was – patented by Tesla Motors in 2017.
Patentable subject matter can have more than one use; listing all the uses can help you in your patent application
What Is Intellectual Property?
Intellectual property is any invention that may qualify for intellectual property protection through the courts.
For instance, manuscripts and movie scripts can be copyrighted. Brand logos and names can be trademarked. And inventions, including products, methods, and computer software, can be patented.
“Trade secrets” make up the fourth category of intellectual property; these are not typically protected like other types of intellectual property. Each company has a responsibility to keep their proprietary processes and procedures under wraps.
What Is An Intellectual Property Assessment?
If you aren’t sure if you need to apply for a patent for your intellectual property, you can conduct an intellectual property assessment.
An IP assessment, a process developed by the USPTO and the National Institute of Standards and Technology/Manufacturing Extension Partnership (NIST/MEP) allows you to assess your intellectual property awareness.
This assessment can help you identify what IP should be patented, copyrighted, or trademarked.
How Difficult Is It To Get a Patent?
It’s not difficult to get a patent if you know what you’re doing and have patentable subject matter, used in a patentable application.
But the process takes time and if you don’t understand what the USPTO looks for in your patent application, your application could be denied.
First, you’ll want to determine if you have a claimed invention that fits the criteria for patentable subject matter. Your invention must be novel, useful, and non-obvious.
You’ll need to perform a patent search to determine if your idea is truly novel or if someone else has patented it or something similar.
You’ll also need to search for similar inventions that were never patented. Remember, if an invention is being used and sold regularly or has been known about for more than a year, you can’t patent that invention.
Many great inventions were never patented but are in everyday use, so you can’t patent them.
The patent search process can take a long time and it can be easy to miss an invention.
Once you begin documenting your invention, process, materials used and the patentable applications of your invention, you may get confused about what the USPTO is looking for.
After you submit your application, you’ll go through the review process. The patent examiner may have extensive questions about your application and may even deny parts of it.
The Patent Professor® can help you make sure you’re not missing anything when it comes to the patent search and filling out your patent application. We can guide you through the exam process, increasing your odds of a successful patent filing.
How Do I Protect My Invention Without a Patent?
You can protect your invention without a patent by declaring it as a trade secret. You can ask employees and contractors to sign Non-Disclosure Agreements (NDAs), or contracts stating the worker won’t talk about or share your IP with anyone outside the company.
But filing a patent can help ensure that no one will take your invention and try to profit off of it. If anyone tries to steal your patented idea, you can go to court to defend your intellectual property.
Ultimately, it’s easier to protect your invention with a patent than trying to keep it secret using other methods.
The Patent Professor® has the experience, skill, knowledge, and connections to help you patent your invention.
Is your invention eligible for a patent?
Call The Patent Professor® at (877) 731-5667 to find out.
