NEW STUFF AND IMPROVEMENTS ON OLD STUFF.
I love inventions and innovation. Like, LOVE love. So much so that I actually own a set of inventor trading cards (I know, nerd much?). One of the reasons I settled on intellectual property law after law school was because of my affinity for innovation, ideas and tinkering. When I was a kid I’d take everything apart in my parents’ house just to see how things looked and worked. I got my engineering degree before law school, so intellectual property law just fit.
When I practiced patent law, one of the things I enjoyed most was hearing passionate inventors talk about what they had created. Unfortunately, that didn’t happen often enough to keep me in the practice. Today, I get to hear about inventions and innovation almost every day and it gives. me. life.
When inventors invent a new thing, one of the most common ways to protect that thing is via patent law. The United States Patent and Trademark Office (“USPTO”) has issued more than 10 million patents as of the time of this writing. Patents can be very useful pieces of property for entrepreneurs and businesses to own, particularly for startup companies looking for funding from angels, venture capital groups, and elsewhere. It is understandable that folks want to pursue them.
Even with such an emphasis in the startup/innovation world on patents, we do not make it easy to get them in the U.S. There are a number of reasons for this, which I’ll explore multiple times in future articles. For now, let’s start with the basics!
Patent law is a really complicated (and expensive) area of the law. Unfortunately, people with underrepresented backgrounds, including women and black people, have historically been left out of the patent system, though this is changing.
In this article, I’ll walk through the most BASIC of basic patent principles. This is one place where most folks need to work with a professional in some capacity. I’ll do a post later on how to choose the right patent lawyer or patent agent, because that choice in and of itself can make or break you (and your bank account).
Unlike copyrights and trademarks, to get patent protection you must file an application with the USPTO. Filing these applications has been deemed special enough to require lawyers and engineers to take a separate, difficult test just to have permission to file them (historically, only about 50% of the people who take the test pass).
Under the law, you can file these applications on your own, but you’ll need a very, very good handle on the law and rules to do so effectively. For example, there was an entire lawsuit over the interpretation of the word “or” in a 42 page patent. Patent applications and the resulting issued patents can be assessed with a fine-toothed comb, so you want to be meticulous with whatever you do.
To get your patent application approved by the USPTO, your invention must be new, useful, not obvious, and fall within a specific legal category.
Your invention must be new.
An invention is “new” if it hasn’t been disclosed publicly. The law and rules on this are very, very complex. Some basic guidelines state that an invention isn’t new if the public knew about it before the application was filed or if the invention appeared in writing before the application was filed.
Your invention must be useful.
This requirement is commonly referred to as “utility.” The interpretation is complicated, but, generally, an invention has to be capable of being used for some purpose and it must have some identifiable benefit. The bar for utility is pretty low, and most patent applications explicitly state what the usefulness/utility of the invention is.
Your invention must not be obvious.
The patent office’s approach is to ask what people familiar with this invention’s general area would think–these people are called persons “of ordinary skill in the art”. If the invention would be obvious to an ordinary person who works with the invention’s field, the invention isn’t patentable.
Your invention must be “patentable subject matter.”
Fourth, the invention has to fall within one of the categories outlined in the law. These categories are:
- articles of manufacture, and
- compositions of matter.
You can also get a patent for an improvement on something falling within one of these categories. Even though the words are a bit complex, all kinds of things can be patentable, and they don’t have to be high tech or highbrow.
Laws of nature, physical phenomena, and abstract ideas are not patentable, though this is another very complicated topic. There are literal books about the patentability of “abstract ideas” (which includes software), so tread lightly.
Congratulations–you now know juuuuuust enough to be dangerous. As I stated at the outset, your best bet is to work with a licensed patent agent or patent attorney if you think you have something patent-worthy.
Have you invented something and received a patent? Thinking about trying to get a patent? Shoot us a comment and let us know about it!