Patent Nonobviousness

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 What is a Patent?

Inventors are individuals who will want to protect their invention from unauthorized use or distribution. Pursuant to federal patent laws, patents are provided to inventors to exclude other entities from “making, using, offering for sale or selling the invention” in the United States.

Patents usually last for 20 years. They may be used for an invention in any field of technology.

What Types of Inventions can be Patented?

Generally, in order for an individual to obtain a patent from the United States Patent and Trademark Office (USPTO), their invention must be:

  • New;
  • Unique; and
  • Generally unobvious.

Different categories of patents are available, depending upon the invention that an individual desires to patent, including:

  • Utility patents: To qualify for a utility patent, inventions must be moderately useful. In general, inventions are required to be:
    • a method or a process with a concrete result;
    • a machine;
    • a chemical or biological composition of matter; or
    • an invention improvement;
  • Design patents: In general, the design to be patented is required to be:
    • novel;
    • non-obvious; and
    • Nonfunctional; and
  • Plant patents: Plants that are created may be patented. The plant has to be novel and non-obvious.

It is important to be aware that there are types of items and ideas that cannot be patented, including:

  • Naturally occurring substances;
  • Laws of nature;
  • Ideas;
  • Calculation methods; and
  • Other things.

How Do I Know if My Invention is Obvious or Not?

If an individual of ordinary skill in the field of an invention would not have been able to think of or make the invention by looking at the available public information, the invention will likely be considered to be nonobvious.

What Sorts of Public Information will the USPTO Look at to See if My Invention is Obvious?

To determine if an invention is obvious, the USPTO will consider all of the relevant public information that was available before an invention was made. The relevance of this information does not have to be directly related to the industry of the invention.

For example, if an individual invented a type of briefcase, they would not only look at the information and knowledge of briefcases but also:

  • Clasps;
  • Hinges; and
  • Other items that have similar qualities and problems as the briefcase.

What Does it Mean to have Ordinary Skill?

An individual who has ordinary skill in the art of invention is an individual who frequently deals with the issues that the invention attempts to solve. The skill of the inventor is not relevant to what the ordinary skill is.

For example, if the inventor is new to the field or is not familiar with its issues, it may take tremendous insight for them to create an invention that was obvious to an individual of ordinary skill in the field. There are several factors that are used to determine the ordinary level of skill in a field, including:

  • What types of problems encountered;
  • How quickly innovations are made; and
  • The education level of the average worker.

What Other Factors Can Prove My Invention was Nonobvious?

When deciding whether or not an invention was obvious, courts have considered several other factors, including:

  • Commercial success: If an invention is very popular and preferred over other products, this may mean that the invention was something others had not thought of;
  • Long-felt but unsolved need: If there was a need for something that could not be met, then an invention that filled that need would clearly be nonobvious;
  • Copying: If others resort to copying an invention because they cannot come up with their own solution, the invention is probably nonobvious;
  • Licensing: If others would rather pay money to use an invention than try to solve the problem themselves, the invention was probably nonobvious; and
  • Adoption by the industry: if the industry adopts an invention, this indicates that it may be better than others and nonobvious.

How Can I Get a Patent for My Invention?

The USPTO handles all applications for patents as well as makes all determinations related to patents. Inventors are required to submit an application to the USPTO that includes specific drawings and a plan of their proposed invention.

This application also requires that the inventor include the payment of a fee. The plan for the invention must follow a very rigid and specific form.

Once an individual’s patent application is reviewed, the USPTO may question them regarding any questions the office has. It is important to note that, as of September 2011, the individual who first filed a patent receives exclusive rights.

Prior to September 2011, patent protections were provided to the individual who first invented the product or technology.

Can I Transfer My Patent to a Family Member or Business Partner?

Yes, an individual may transfer their patent to a family member or to a business partner. The United States Constitution provides Congress with the power to grant certain exclusive rights to inventors.

The federal code gives individuals the right to treat their patent similar to other types of property, which may include:

  • Selling;
  • Licensing;
  • Mortgaging;
  • Transferring; and
  • Abandoning.

How Long Does a Patent Last?

The duration of a patent depends on when it was filed. If it was filed after June 8, 1995, it will last for a period of 20 years from the date that patent application was filed.

If it was filed prior to June 8, 1995, it will last for either 17 years from the date of the application being granted or 20 years from the filing date of the application, whatever time period is longer. The duration of the patent will also depend on the type of patent that is filed.

According to category, the duration of patents is as follows:

  • Utility patent: This patent lasts 20 years from the date of its filing if it was filed prior to June 8, 1995 or 17 years from the date of issuance, whatever is longer;
  • Design patent: This patent lasts 14 years from the date of issuance; and
  • Plant patents: This patent lasts 17 years from the date of issuance.

What is Patent Infringement?

Patent infringement arises when one party uses another party’s invention or an invention that has similar elements. To show that patent infringement has occurred, an individual will be required to compare the elements and claims of the original patent with the elements of the device or invention that is suspect.

If these match elements and claims are the same, there is an infringement. An inventor can enforce their patent in a federal court.

Do I Need a Patent Attorney?

If you are considering filing for a patent on your invention and you are concerned about the requirement of nonobviousness, it may be helpful to consult with a patent lawyer for information on the complex issues related to the patent process.

If you have any other issues or questions related to a patent or a patent application, it may be helpful to consult with a patent attorney. Your attorney will have knowledge of what language to use in the patent application as well as how to show the value of the innovative facets of the invention.

The deadlines and regulations for patent applications are also detailed and strict. Your patent attorney can assist you with meeting all of the requirements and deadlines for a patent application.

If you have already obtained a patent, your attorney will be able to ensure that patent infringement is not occurring. If patent infringement is occurring, your attorney can file a legal action in court as well as represent you during any appearances.

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