What must an invention have to be patentable?
- No statutory bar
Novelty means that the invention must be new; if the invention was done before, you cannot receive a patent on it.
Non-obviousness is a little harder to determine. The law states:
â€œA patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.â€ 35 USC Â§103.
In practical terms, if your invention simply combines two or more known technologies or processes, and a person having normal skills in the art your invention entails would have seen the benefits of combining them, you may have difficulty overcoming a non-obviousness test. However, very few inventions are made of completely new everything, and in some cases, these rejections may be overcome.
The utility requirement for a patent comes from the â€œnew and usefulâ€ language of the law. Fortunately for inventors seeking a patent, this is a low hanging branch. In practice, if your invention can be used for anything other than to break the law, it will probably pass this test.
Finally, you cannot obtain a patent if there is a statutory bar preventing it. 35 USC Â§102 has several restrictions which may prevent you from obtaining a patent even though it meets the new, useful, and non-obvious requirements. One of the restrictions is that â€œA person shall be entitled to a patent unless - . . . 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 date of the application for patent in the United States . . .â€
If you have written about, sold, or used your invention in public (possibly even if the public didnâ€™t know about it) more than one year before your application, you may not obtain a patent. Remember that a patent is granted in exchange for disclosing your invention to the publicâ€”if you have already disclosed it, there is no need to grant you a patent!