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See Also: Video-Course: Patent Basics – Module 1 of 5 Video-Course: Patent Infringement Litigation – Module 5 of 5 Foundations of Law: Patent Infringement Patents: The Basics Registered patent attorneys receive many questions throughout the course of a day. One of the most common question is “Is my invention patentable?” We will look at the various issues that go into answering this question, including “What is a patent?”, “What is patentable?”, and “What rights does a patent confer?” Additionally, we will look at three types of patents and what each is used for. What is a patent? There are three types of patents. These three are: utility, design, and plant. Utility patents are what people think of when they think “patents.”  Utility patents are patents on useful items.  These are the patents one would get on an invention. Such a patent covers the “usefulness of a product,” meaning that a utility patent will protect the useful or functional aspects of an invention. Design patents are to the ornamental design of an object.  A simple way to approach design patents is to consider the “fins on the car.”  If you remember old 1950’s-era cars, many of them had big fins on them.[i]  They served no purpose other than to look cool.  The fins did not make the cars faster, improve aerodynamics, and did not serve any function.  They were pure design.  Design patents are to protect these design elements.  Functional parts of the car, e.g. the engine, transmission, brakes, etc. would be covered by utility patents instead. Finally, we have plant patents.  Plant patents are to cover new types of flowering plants that can be reproduced asexually.[ii] Flowers are plant sex organs and contain both the male and female parts.  Pollen is basically “plant sperm.[iii]” (Something to keep in mind during allergy season.) Plant patents thus apply to plants that are engineered to reproduce without the use of pollen. What is patentable? When a product or process is new and useful, it is very likely that it is patentable. To be patentable, an invention must satisfy three basic elements.  The invention must be: – new, – useful, and – not obvious.[iv] New The requirement of being “new” (also called the “novelty” requirement) is the easiest for non-practitioners to understand, but is often the hardest part of the patent prosecution process.  To get a patent on an invention, the invention must actually be new.  In practicing patent law, much of the process focuses on explaining how and why the invention is different from what came before.  Everything that came before is referred to as the “prior art.” The invention cannot be expressly or implicitly disclosed in any “prior art” references. If there is already a patent for the invention, a patent application for the invention, a description of the invention in a printed publication, or a product in use that already uses the process used by the invention, the invention does not meet the novelty requirement.  Useful Usefulness, also referred to as the “utility requirement,” is—in practice—one of the easier parts of the process.  After all, as the saying goes, necessity is the mother of invention.  Inventions are almost always solutions to problems. The mere fact that it’s a solution to an existing problem makes it useful.  The utility requirement requires us to answer the questions “Does the invention do anything?” and “Does the invention work?” with “Yes”es. Not Obvious Non-obviousness is a different problem from novelty.  To some extent, all inventions are combinations of older inventions.  This is the idea that, as Isaac Newton said, “If I have seen further, it is by standing on the shoulders of giants.”[v] The non-obviousness test is asking: Is the combination that comprises the invention in question obvious?  An obviousness inquiry asks whether combining the two older inventions would be obvious to “one skilled in the art.” One skilled in the art is similar to the “reasonable person” who appears frequently in other areas of law, but in this case, the reasonably person is one who works in or is skilled in the field of the invention. An interesting method to describing non-obviousness is the “Reese’s Problem,” after Reese’s Pieces. By this, we mean: Would it have been obvious to combine chocolate and peanut butter?  Many enjoy this combination of flavors, but would it have been obvious to combine them?  In hindsight, it is hard to imagine our lives without many of the inventions we take for granted, but someone had to think of each of them first.  To get a patent, the invention must be a non-obvious combination.  Peanut butter and chocolate are a delicious—but not an obvious—combination of flavors.  In Graham v. John Deere Co.,[vi] a 1966 United States Supreme Court case, the Court approached non-obviousness. The Court employed a three-part factual analysis for determining non-obviousness. The first inquiry is to determine the scope and content of the prior art. Second, the court must examine the differences between the prior art and the claims at issue. The third step is to analyze the level of ordinary skill in the pertinent art. Once these factors are analyzed, a court will determine whether an invention is non-obvious. What rights does a patent confer? A patent is not the right to make and use your invention.  It is the inverse.  It is the right to prevent others from making, using, or importing the invention claimed in the patent.  If a process is covered by a patent, then any product that uses that patented process is infringing on that patent.  The allegedly infringing product is compared with the claims in the original patent to see if the product used the patented process, thus infringing on the patent.  As a corollary to this, a patent cannot allow the use of a process that was previously patented by someone else. However, an improvement on an existing product can be patented. While the patent on the original product stays with the original patent holder, the new patent can cover the improvement. While the party who patents the improvement does not get rights to the original patent, the holder of the original patent likewise has no rights to the patented improvement.  A common example that is applicable to teachers and students is of the dry-erase marker and its evolution.[vii] The marker exists and someone holds a patent on it.  Then, someone invented the stackable cap, which is the cap on the dry-erase marker that allows the markers to connect to one-another. That cap was an invention, and could itself have been patented.  However, holding the patent on the cap does not allow one to build the new dry-erase markers.  Someone else holds that patent.  The patent on the cap hold prevents the original dry-erase marker manufacturer from adding the improved cap to the marker.  So, is an invention patentable?  If it is new, useful, and not obvious, then the answer is yes.  A patent application may then be drafted and filed with the USPTO, a process that is covered in other presentations.  If one is granted a patent, one then has the right to keep others from making, using, or importing one’s invention without one’s permission.  Footnotes [iii] https://en.wikipedia.org/wiki/Pollen

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