What does Patentability mean?
Patentability is a combination of two expert evaluations to address all four patentability requirements: 1. patent eligible subject matter, 2. useful, 3. novel, and 4. non-obvious. Our patentability expert can you help make these determinations. Is your invention patentable?
The first evaluation is a determination whether or not an idea or invention is patent eligible subject matter. A process, a machine, a manufacture, or composition of matter can obtain a patent. In the U.S., there are four categories of patent eligible subject matter:
- Firstly, a process defines actions. An act, step, or a series of acts or steps is generally a process.
- Secondly, a machine is a concrete thing. A device or apparatus made of parts, devices and/or combinations of parts and/or devices generally defines a machine.
- Thirdly, a manufacture is a tangible article. A new form, quality, property, or combination through man-made or artificial means generally defines a manufacture.
- Lastly, a composition of matter is a combination of two or more substances or composites.
The second evaluation is a three part determination. Firstly, (35 U.S.C. §101), whether it is useful. Any non-criminal or non-trash use is acceptable. Secondly, (35 U.S.C. §102), whether or not it is new. It cannot exist in the prior art or conflict with another invention or idea. Thirdly, (35 U.S.C. §103), whether it would be obvious to try for a person having skill in the art of making the invention. With our patentability expert, you get a prior art search and patentability study report for your idea or invention.
What is patentable?
Looking for a Patentability Expert?
Do you need to know if your invention or idea is patentable? Our patentability expert can help you find out. For an invention to be patentable, it must meet these four requirements: 1. patent eligible subject matter, 2. useful, 3. novel, and 4. non-obvious. Our patentability report and patent application expert (patent attorney) does all of our patentability searching, analysis, and reports. We assure you your invention is confidential with us. Carson Patents does not outsource any patent searching, patentability studies, or reports. Hire our patentability expert for help with all of the 5 steps to patent for your invention or idea with a utility patent, a plant patent, or a design patent application.
For Patent Applications in the U.S.
Patentability – What is patentable? The United States uses four criteria to determine patentability. The four criteria under U.S. law are 1. patent eligible subject matter, 2. usefulness, 3. novelty, and 4. non-obviousness. The criteria for International (PCT) patent applications are slightly different and will be discussed in depth later. Two stages determine the invention’s patentability. The first stage evaluates the first criteria: patent eligible subject matter. The second stage is a determination of the remaining criteria: usefulness, novelty, and non-obviousness.
First Stage: Patent Eligible
The first stage of the patentability evaluation is a determination of whether or not an idea or invention is patent eligible. Patent Eligible Subject Matter (read more at USPTO) means an invention must be a process, machine, manufacture, or composition of matter. As recognized by the courts, the invention cannot be within the exceptions of laws of nature, physical phenomena, and abstract ideas. For instance, an invention cannot be patented if it defies the laws of nature.
NOTE: The criteria described here are based on United States law. In contrast, the criteria for International (PCT) patent applications differ.
Second Stage: Usefulness, Novelty, Non-Obviousness
Then, the second stage of the patentability evaluation analyzes the other three criteria: usefulness, novelty, and non-obviousness. Firstly, is the invention useful? If the invention has any non-criminal use and is more than mere trash, it is likely to meet the usefulness criteria. Secondly, is the invention novel? In other words, the invention must be new. Prior art determines novelty (35 U.S.C. §102). This means it cannot exist in any relevant information available to the public in any form before the date of invention. Thirdly, is the invention obvious? Could a Person Having Ordinary Skill in the Art (PHOSITA) attempt the invention? For example, if the invention was a new toy, a person able to make toys would know from the prior art how to make and use the invention. Prior art determines non-obviousness (35 U.S.C. §103), similar to novelty. Patentable inventions must meet all of these criteria.
For International Patent Applications
What is patentable? As mentioned above, the patentability criteria differs for the International Patent Cooperation Treaty (PCT) applications. The three criteria for patentability, under the International law, are 1. novelty, 2. inventive step, and 3. industrial applicability. Comparatively, the PCT criteria are similar to the United States criteria for novelty, non-obviousness, and utility.
First Criteria: Novel
The first patentability criteria for a PCT patent application is whether an idea or invention is novel. U.S. law and PCT applications evaluate novelty the same. Similarly, if the invention exists in the prior art, it is not new, or novel. Also, all information available to the public in any form before the date of invention that might be relevant to claims of novelty and non-obviousness is prior art. Only novel inventions are patentable.
NOTE: The criteria described here are based on the Patent Cooperation Treaty. Patent applications in the U.S. differ.
Second Criteria: Inventive Step
The second patentability criteria for a PCT application is a determination of whether an idea or invention has an inventive step. The PCT evaluates inventive step like the the U.S. evaluates the non-obviousness criteria: whether the invention would be obvious to try for a Person Having Ordinary Skill in the Art (PHOSITA). For example, if the invention was a new toy, a person able to make toys would know from the prior art how to make and use the invention. Prior art determines inventive step, similar to non-obviousness. If a combination of prior art would render the invention obvious to a PHOSITA, the invention is not patentable.
Third Criteria: Industrial Applicability
The third patentability criteria for a PCT patent application is a determination of whether an idea or invention has industrial applicability. Industrial applicability for a PCT patent application is evaluated similar to the usefulness criteria under U.S. law. If the invention has any non-criminal use and is more than mere trash, it is likely to meet the usefulness criteria. Only useful inventions are patentable.
A professional conducts a prior art search to find potential prior art and determine patentability. The prior art is used to evaluate an invention against these eligibility criteria. In other words, a patentability expert conducts a patentability study using prior art.
What is Prior Art?
Prior Art can be Any Information Available
Prior art is all information available to the public in any form before the date of invention that might be relevant to claims of novelty (35 U.S.C. §102) and non-obviousness (35 U.S.C. §103). In other words, prior art is any disclosure relevant to claims of originality and obviousness. Specifically, any similar disclosure to a patent claim may prevent the claim from being allowed.
The prior art is any patent, patent application, or non-patent literature that discloses an idea or invention. Disclosing means describes, or shows, how to make and use it. Prior art can come from any country around the world. Correspondingly, there are over 100 authorities to search in many languages. Prior art often requires language translation. At Carson Patents, our prior art search finds prior art from all these authorities translated to English.
What Does “Art” Mean?
The art of an invention belongs in the technological area to which the invention pertains or with which it is most nearly connected. What the invention is determines the art. The technological area(s) an invention is classified into for examination and indexing are frequently similar sounding. For example, if an invention’s classification included words like toys and games, the art would be “making toys and games.”
The “art” matters because the description from a patent application must enable a person, having ordinary skill in that art, to both make and use the invention. So, if the invention were a new toy, a person having ordinary skill in the art of making toys and games would need to be able to make and use the invention from the description submitted with patent application. Our patentability expert can help you make this determination. Contact Carson Patents for an expert patentability report for your invention or idea.
What does “Patented” mean?
Protecting Products and Processes
Patented is defined as when a product or process has an issued patent and is legally protected. The issue of a patent has conferred legal protection for the product or process. A patent is the legal right to control the making, using, and selling of the invention for the length of the patent.
Patented means that the patent office examined the patent application and found some claim(s) allowable and the issue fee has been paid. We send allowed claims a notice of allowance and an offer to pay a patent issue fee. The patent issues when the issue fee is paid. The allowed claim(s) described in the issued patent are then patented (protected). Patent protection offers legal rights to control making, using, and selling for the duration of the patent in the country or regions where it is issued.
U.S. Patent Laws
35 U.S.C. 101
35 U.S.C. 101 Inventions patentable.
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.USPTO Manual of Patent Examining Procedure
35 U.S.C. 102
35 U.S.C. 102 Conditions for patentability; novelty.
(a) NOVELTY; PRIOR ART. – A person shall be entitled to a patent unless – (1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention, or (2) the claimed invention was described in a patent issued or in an application for patent published or deemed published, in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.USPTO Manual of Patent Examining Procedure
35 U.S.C. 103
35 U.S.C. 103 Conditions for patentability; non-obvious subject matter.
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.USPTO Manual of Patent Examining Procedure