Overview of patents

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Overview of patents

There are several types of intellectual property in different bodies of law that protect that intellectual property. If you have name brand, you use trademark law. If you have a work of authorship, you use copyright law. If you have a secret recipe, you use trade secret law and if you have a right that enables you to make money by endorsements, you use right of publicity law. But what if you have an idea? The other four areas of IP protect tangible things. Think about it, a trademark is brand name. Trademark law protects a specific name from being infringed by confusingly similar names.

A copyright is an original work of authorship that has been fixed in tangible form and copyright law protects that particular work from being copied. It doesn't protect the idea of the expression, only the expression itself. A trade secret is generally information that is not publicly available and trade secret law helps prevent the unauthorized use or disclosure of that secret information. Rights of publicity protect the person's persona and the law prevents unauthorized use of somebody's image. So back to your idea.

You're probably realizing that if you have an idea, trademark law might help you with the name on it, copyright law might protect you in the final expression of it but it is patent law that actually protects ideas. Patent law is the area of IP law that will protect that stroke of genius, that new way to open a bottle or fix a leak. Patent law protects ideas by granting monopoly on that idea for up to a twenty year period. Not all ideas are protectable. Let me talk about what kinds of ideas are protectable under patent law.

In order to be patented, an idea must have three features, utility, novelty and non-obviousness. Let me explain each of these. First utility, an idea has to be useful. Utility is best described as something that has use. An invention is useful if it produces an effect. A machine which will not operate to perform the intended purpose would not be called useful. In the 1790s, it was difficult to separate cotton and seeds embedded in the cotton so, Eli Whitney invented the cotton gin and obtained a patent for a device that could separate the seeds out of the cotton.

If the invention does something useful and you're claiming that as the basis for your patent, then your idea will have utility. If your idea has utility but the thing it does is not what you're claiming in your patent, then it will not be patentable. The useful thing it does needs to be the thing you claim rights to. In addition to having utility, an invention must be novel to be patentable. Let's talk about novelty. An invention is novel, if nothing identical previously existed.

Novelty means no one has ever done it before the way you are doing it. Sometimes when you have that stroke of genius, it turns out that someone has already invented that very same thing. One friend of mine called me to ask about patenting a new idea. He had been golfing and had a back injury that made it hard to pick up his ball from a cup. He can still golf but it would hurt when he bend over to get his ball. He thought of the idea of a set of prongs that could be plugged into the end of putter and then used to pick the ball up from the cup.

I told him how to search patent database. In an hour he called back and said that there was already a patent issued on the exact same thing right down to drawings that were almost identical to what he had come up with. For him, the idea was not novel. It had been done before. It was not novel and therefore he cannot obtain a patent for that particular idea. It is not very difficult to overcome the novelty requirement though. This is because there are so many creative solutions to so many problems that most people will solve, each issue different from someone else.

But there's a final requirement in patentability that is more difficult to overcome. We call this one non-obviousness. Non-obviousness is a requirement that your idea, not be obvious to a person skilled in the art of your particular field of science or engineering. Now let's say that there was a ball picker upper like my friend thought of. But the prior patent used five prongs rather than four. A patent examiner might find it obvious to invent a picker upper that uses more prongs when someone else's already invented one that uses any number of prongs.

If the patent examiner felt this way, then he or she will issue a rejection based on the fact that the invention is obvious. On the other hand, a ball picker upper that uses a suction cup or spring or a sticky surface might not be obvious because even though they all solve the same problem, they do it in different ways that may not be obvious in light of the prior prong system. Non-obviousness is the biggest hurdle in patentability. It may be fairly easy to invent something novel, meaning no one has done the exact thing. But inventing something that is not obvious, is more challenging.

Most patent rejections are over obviousness. To summarize, a patent must be something useful, it must be novel and it must be non-obvious. One important thing to note is that your invention can become a bar to your patentability. Let me explain. Let's say that you invent something, you spend years showing people and maybe even selling a product that embodies the invention, because you have not applied for a patent for your invention, your public practice of your invention will bar you from getting a patent. In other words, you can be barred by your own disclosure, if you don't file a patent within one year of the time that you have disclosed the idea to someone who was not under duty of confidentiality.

We call this one year period, a safe harbor. You have that time to file a patent after you make any disclosure. However, in many countries your disclosure will bar you from obtaining a patent immediately. To summarize what we've covered, patentability requires utility, novelty and non-obviousness. You cannot get a patent on something you have made public more than one year prior to filing.

Source: https://www.linkedin.com/learning/understanding-patents-a-deeper-dive/overview-of-patents