1. Is it commercializable?
Look at the cost of your invention, competitors’ products, the invention’s ease of use, and consumer demand.
2. Did I invent it?
You can only obtain a patent if you personally
invented something. The inventor is the initial patent rights owner.
You may also be a co-inventor to file. A co-inventor is someone who contributed to at least one novel and non-obvious concept that makes the invention patentable. This will be further discussed later.
3. Do I own it?
You must own the invention to file a patent application. This may not be the case if your employer owns the rights to the invention, i.e. you’ve given up rights to the invention prior to its creation, you were hired specifically to invent it, or your employer has certain rights to use the invention.
4. Is it
A patent is only granted for useful
inventions. Though most inventions are useful, the USPTO has found the
following to be ineligible for patents:
- ornamental, without utility. You may want to
consider a design patent application if your invention has visual ornamental
characteristics embodied in or applied to an article of manufacture that is not
- unsafe drugs;
- nuclear weapons;
- immoral inventions;
- non-operable inventions;
- inventions only with illegal uses; and
- theoretical phenomenon.
5. Does it fit into a patent “class”?
The U.S. Supreme Court said that anything man-made falls into these “classes,” but anything natural or abstract will not. The “classes” are broad, so an invention is likely to fit into one of these categories. In fact, it might fit into a couple. Ultimately, for a patent to issue, an invention must fall into at least one of them. The following are the five “classes.” What are these fives classes?
6. Is it novel?
Patented inventions must be different from existing knowledge or previous inventions, otherwise known as prior art. That means the new invention should be physically or operationally unique in at least one way from the date it was conceived, otherwise known as the date of invention or the date you filed a patent application. Novelty includes the invention incorporating a new feature, using an old feature in a new way, or having a new combination of old features. How to know if your invention is novel?
7. Is it non-obvious?
This is the highest bar to patent
ownership. If something is obvious, then
it isn’t patentable. If it is surprising
and unexpected, then it usually is non-obvious and hence, may be patentable.
Factors in determining obviousness include:
- invention has commercial success;
- invention solves a non-obvious problem;
- invention subtracts a piece of hardware that was
included in the prior art;
- invention modifies the prior art in a new way;
- industry needs the invention;
- others have tried to come up with this invention
- other inventors said this invention was
- others have copied this invention; or
- others in the field have praised the invention.
You can read more about the USPTO’s process for determining obviousness at http://www.uspto.gov/web/offices/pac/mpep/documents/2100_2141.htm.
Briefly, the focus for the USPTO when making a
determination of obviousness is—what a person of ordinary skill in the
pertinent art would have known at the time of the invention, and on what such a
person would have reasonably expected to have been able to do in light of that
knowledge. This is the standard regardless of whether the source of that knowledge
and ability was documented prior art, general knowledge in the art or common