What Can Be Patented

As required by 35 USC §101, an invention must be new and must be useful to be patentable. (Design patents need not be useful, however, to satisfy the requirements for patentability.) In addition, as required by 35 USC §101, the invention must be directed to a process, machine, manufacture, or composition of matter or to any new and useful improvement thereof. Patents are concerned with technology or the useful arts as contrasted to the liberal arts. A shorthand way to view the subject matter of a patent is that it represents the means by which a desired result is obtained.

The term process as used in the patent statute involves the treatment or manipulation of some material or materials or of information to cause some change to the material or information treated or manipulated by the process.

Novelty. Another requirement that an invention must satisfy to be patentable is that it must be new or novel (35 USC §102). Because patents are creatures of statutes, those conditions, referred to as prior art, that defeat the novelty of an invention are likewise defined in the patent laws. Only the more typically encountered ones are mentioned below.

The two most common categories of prior art are probably printed publications and patents. The publications and patents can be from any country and in any language. A patent or publication that describes an invention and is prior in time to it defeats the novelty of the invention. In the event a printed publication or patent describes an invention and is more than one year old when the patent application is filed in a patent office, such will render the invention of that patent application unpatentable no matter when the invention was actually made. In fact, the patent or publication could even be by the inventor and when such is more than one year before the actual filing of the patent application, granting of a patent is precluded. This situation is referred to as a statutory bar, because no matter whose patent or publication and no matter when the invention was made, a patent is barred. In essence the United States gives the inventor a one-year grace period after patenting or publication to file an application provided the invention was made prior to the patent or publication. However, most other countries do not give any grace period. Therefore, the patent application must already be on file before the invention is publically disclosed to be patentable in most other countries. Often an inventor desires to present or publish a paper describing some discovery. However, to preserve foreign rights, the paper should not be published until a patent application has been filed. After filing, it could be published without affecting rights.

Public use or public knowledge of an invention in the United States prior to the invention renders it unpatentable. Moreover a patent is precluded if the invention was in public use or on sale in the United States more than one year prior to filing the patent application. The public use or on sale activity could even be by the inventor and when it is more than one year before the filing of the patent application, such activity will prevent granting of a patent. This one-year period is an attempt to balance the desire for early disclosure of the invention to the public and the need to give the inventor some limited time to determine whether pursuing patent protection is justified.

Nonobviousness. The above-discussed novelty-defeating prior art items presuppose that the exact subject matter for which a patent is being sought is described by a single prior art item. However, even if the invention is not fully described by a single prior art item it still may not be patentable. In particular, the patent law also requires that the invention be nonobvious (35 USC §103). An invention is not patentable 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 of ordinary skill in the technology of art that is the subject matter of the invention. Stated in other terms, the advance or difference between the subject matter sought to be patented and the prior art must not be so trivial to be readily apparent to persons working in that particular technology.

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