Part 3 - Short Guide to Patent Protection and Patentability

Part 3 - Short Guide to Patent Protection and Patentability

More on the topic of patentability.

For an object or idea to be patentable, it must fit into one of the following four categories; process, manufacture, machine or composition of matter. The subject matter must also be original, an unmodified, previously existing invention is never patentable. There must be a significant improvement over previous inventions for the new one to qualify. If two previous inventions are combined together, the combination must yield new and unexpected results for the invention to be considered patentable.

In addition, an invention must be useful and must actually work in order for it to be patentable. A useful invention is one in which the object already has a utility without anyone having to pursue further research to identify or reasonably confirm the utility. So, if you’ve invented a nifty little widget or doodad, but haven’t got a clue as to what it could be used for, the PTO isn’t going to be impressed and won’t give you a patent.

On the bright side, if an invention does not accomplish all of its intended function or it only has partial success, it may still be patentable. In the case of newly developed drugs, the claimed invention only needs to treat a single symptom of an incurable disease for it to have usefulness. The Patent Office isn't as strict on drugs and treatments (that's where the Food and Drug Administration come in).

Part 2 - Short Guide to Patent Protection and Patentability

Part 2 - Short Guide to Patent Protection and Patentability

What can be protected?

Determining what qualifies as a patentable invention is a highly difficult and complicated task. The MPEP states that “Anything under the sun that was invented by man qualifies as patentable”. Simple enough, but if you notice, following this statement is hundreds of pages full of exceptions and details on the idea of patentability. Scores of appeals and patent court cases have arisen due to questions regarding patentability because it still hasn’t, and probably never will be, entirely pinned down.

So, defining what is patentable is not as clear cut as black and white. Inventions can encompass a wide variety of areas, even living subject matter so long as the subject matter is the result of human intervention. An example of a patentable living organism is a microorganism or a plant which is produced or altered through genetic engineering. The key is that the living matter must be a product of “human ingenuity” and not merely a naturally occurring object, such as a shrimp with its digestive tract removed. The living matter must be altered to yield unique properties for it to be patentable.

However, the alteration can even be the mere fact that the living matter is simply isolated or purified. For example, unaltered pieces of DNA may be patentable provided they have been sequenced. The PTO has decided that the act of isolating and sequencing a strand of DNA is the result of human intervention. Currently, there is huge debate surrounding the patenting of biotechnology related “inventions” like DNA. Is a piece of DNA really an invention at all? Or what about a microorganism that happens to degrade oil? Is that an invention? Who knows? We can only hope that maybe someday the PTO will have it all sorted out.

The PTO has established that laws or forces of nature are not deemed patentable. Examples of these include, but are not limited to, the law of gravity or E=mc2. At least the PTO has gotten that far. Computer related inventions may or may not be patentable. Computer programs that have a function when used with a computer are definitely patentable subject matter. Merely recording information (like music, literary works or data) on a computer-readable medium will not result in a patentable idea.

Part 1 - Short Guide to Patent Protection and Patentability

Discover what can be patented and what that means for you.

Patent protection has been granted to cover many products. From the light bulb to the jet engine, patented products are everywhere. Pharmaceutical drugs, computer software, processes for purifying DNA and even some ecommerce methods have all been granted patent protection.

But for all the products that are patentable, there are probably at least an equal number of unpatentable ones. Literary works, movies, songs and music are not eligible for patent protection. These types of products may be protected by a copyright. For more information on copyrights, you may see the Library of Congress.

And, you cannot gain patent protection for your logo or your product's name. Instead, you may file for a trademark. To apply for a trademark, you need to visit the Patent and Trademark Office website and learn about trademarks.

To get back on the right track, patent protection (generally speaking of course, it depends whether the criteria for patentability are met) may be granted to:

• objects with a utility
• designs
• and plants

Most patented objects fit under the utility category. And these are usually the most profitable. If your invention has any use whatsoever, you should file a utility patent to gain the most protection. Design patents only cover the way an object looks. Plant patents, as you can guess, are only granted for new breeds of plants.

Now that you know a little about what types of products may be eligible for patent protection (sorry, but this is just a small sample of what you need to know about patentability), let's address exactly what patent protection offers you.

If you are granted patent protection on your product, you may exclude others from making or using it. That's right; you will be in complete control of your invention's productivity and its sales. Therefore, you make any profits generated from it. Patent protection provides you with a monopoly on your invention. For utility patents, that monopoly lasts 20 years (which may add up to quite a sum of money if your invention is popular).

But wait a minute, what happens after the 20 years term is over? Well, once your patent term expires, anyone may make and sell your invention, and they won't have to share a dime of the profits with you. It may not seem fair since the invention was all your idea, but, all good things must come to an end. Patent protection doesn't last forever.