Requirements for Patentable Inventions

Your concept may be patentable if it meets two conditions:

  1. eligible; and
  2. unique.

Eligibility

The types of inventions that have a higher risk of rejection based on ineligible subject matter include software, computer related technology and business methods. While it is still possible to patent software and business method inventions, you may face a potential battle with the examiner on Section 101 rejections.

Design vs Utility

If you want to protect how your invention looks, then file a design patent application.  If the appearance of your invention is unique, such as the 3-dimensional shape of an object, then you most likely have a patentable design.

If you want to protect how your invention works (e.g., functions, structures or processes), then file a utility patent application, which can be either a provisional or non-provisional application. With utility patents, eligible subject matter generally excludes inventions that consist of laws of nature, natural principles, natural phenomena and natural products with a few exceptions. As to novelty, the issue boils down to whether your concept is unique with respect to prior art.

Patentability Search

Patentability searches can help assess the level of novelty of your invention depending upon the prior art found. Such novelty searches, however, cannot guarantee success because it’s very difficult to predict what additional prior art the patent examiner may find or how the examiner will apply the prior art reference to reject your patent claims. Basically, patentability search results can provide a definitive no, but not a definitive yes. Novelty searches can also provide a roadmap for claiming your invention by focusing on key features that were not found in the search.

If you’re willing to try searching patents yourself, try Google Patents and freepatentsonline.com. Since these searches on these sites are based on keywords, use different synonyms and different combinations of terms to search for relevant prior art.

Filing a Patent Application

If you’re ready to move forward, see this post on filing a utility non-provisional application.

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Vic Lin

Vic Lin

Startup Patent Attorney | IP Chair at Innovation Capital Law Group
We love working with startups and small businesses. I help entrepreneurs protect their intellectual property so they can reach their business goals.
Vic Lin

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