Patent law classifies physical phenomena as products of nature, and thus, if your invention occurs in nature, it is a physical phenomenon and cannot be patented. The Patent Act has one of the broadest standards of what is patentable in all countries. When you file a provisional or non-provisional patent application, you must consider the patentability requirements. To be patentable, the invention must be legal, novel, useful and not obvious.
Certain requirements, such as novelty and lack of obviousness, may involve conducting a preliminary patent search with the assistance of a lawyer or agent. Certain inventions are not patentable under the Patent Act and would not meet the requirement that the invention be “legal”. Examples of clearly non-regulatory inventions are data structures, non-functional descriptive material such as books or music, electromagnetic signals, laws of nature and other abstract ideas. Courts have held that laws of nature, physical phenomena and abstract ideas are not patentable.
When has a “public disclosure” been made? This is a complicated analysis. An invention is generally not novel if the public knew about it before you invented it, if it was described in a publication more than a year before it was presented or if it was publicly used or sold more than a year before it was presented. This means that there is only one year after the first public disclosure or sale during which a patent application can be filed, and if you don't file it within this period it may prevent obtaining a patent by law. The clock can start ticking even if all you did was explain the invention to your friends.
A patent examiner will review the state of the art and will review all previous patents for the same or very similar inventions. When all the features of your invention are found in a single previous patent, the patent will be rejected because it lacks novelty. To ensure that an invention is novel, inventors should conduct a patent search before filing it. The purpose of this requirement is to prevent the previous technique from being repatented.
As with the novelty requirement, the inventor must perform a patent search and study the state of the art to predict if the examiner will discover that his invention is not obvious. The examiner will decide if the invention would be considered obvious to someone with standard knowledge of the subject. This analysis can be difficult since it involves reviewing previous patents for inventions similar to the invention for which a patent is being applied for. Next, the patent examiner will attempt to combine two or more patents to find features in a combination of the above patents.
When the examiner succeeds in finding a combination, he is likely to find that the invention is an obvious combination. Simple changes to older products that are not patentable include replacing materials or changing sizes. If you don't yet have a detailed description of your idea, you can consult with a patent lawyer. In addition to being included in one of these four legal classes, an invention must also avoid a judicially created exception to patentable matter if it is to be considered a type of patentable invention.
The patent infringement defenses available to the defendant will largely depend on the circumstances of each specific case. Possible legal remedies may include compensation for patent infringement, which is intended to reimburse the patent owner for losses caused by infringement. What this means is that if you make a new and useful scientific discovery that no one else has ever thought of, you cannot get a patent on it because you didn't actually create the fact that you discovered. The Patent and Trademark Office is responsible for receiving patent applications as well as making patent determinations.
However, for an invention to be patentable, patent law also requires that it be a non-obvious improvement over previous techniques (35 U). A patent lawsuit is a specific type of lawsuit involving intellectual property laws; most patent lawsuits involve illegal or unauthorized use of a patent or patented material and are generally referred to as patent infringement lawsuits. Unfortunately, actual proof of patentability is more complicated than this phrase suggests. The language of Section 101 identifies four types of inventions that are patentable: processes, machines, articles of manufacture and compositions of matter.
This novelty requirement states that an invention cannot be patented if certain public disclosures of the invention have been made.
