You already know that to patent something, it needs to be different. But how different does it have to be to qualify for a patent? In this third video, Rich discusses the basic criteria for patentability.
How different does your idea need to be make it patentable?
Under the patent law, there are two different requirements that define distinctiveness. First, your invention must be novel. In other words, there is nothing exactly like it in the prior art. Second, your invention must be non-obvious. The second one is a little more challenging. It means that the difference between your invention and what other people have done before—the thing that makes your invention unique—can’t be something that would be obvious to someone in the field. It has to be something that’s a little bit more unexpected.
That means, even if your invention is novel, and there’s nothing exactly like it, there also must be a difference about which someone in the field couldn’t just say, “Yeah, that’s something I knew I could do. I just haven’t done it, yet.” For instance, if your idea is to make clothes hangers in small sizes for children’s clothes, it may be that your invention is novel—no one has ever made a clothes hanger in exactly that size—but it’s the type of thing that people in the field of manufacturing clothes hangers know they can do. They can make a hanger in any size. They choose a particular size because it happens to fit most clothes; so they’ve standardized the size. So basically, the idea of changing the size of an existing invention would be an obvious one and not patentable.
There can be some confusion as to what modifications would be obvious and what ones would not be obvious. And people can (and do) differ in opinion on this, too. Frequently, this is where patentability gets confusing for the untrained eye. And usually, this is when a patent attorney gets involved—to give some guidance as to what the patent examiner may or may not allow as truly non-obvious.
Now, in order to really see whether your idea has a chance of being patented, the first thing you need to know is, what are the closest things in the field to your invention? Then it’s easier to determine whether you’ve made a non-obvious improvement over the things that already exist.
In part 4 of this series, we’ll look at how we determine the closest prior art to your invention.