when patenting an original product. What defines the originality ? is this solely the design (shape, size, contours, materials etc) ? or can an original product be some product with a similar design to existing products although with a brand new original purpose ?
You got about two months, in the least, for an answer? The short story is you (the inventor) must prove to the US Patent Office novelty and non-obviousness, for starters. Novelty is rather well understood - it must have never been disclosed or put to use in any shape or form - prior to you filing the application (with you having the right to have a little wiggle room in the first year if you file a provisional application during said time AND filing a non-provisional application by the end of that 1st year.) In short, if you do not file for a patent in a timely manner and put your invention to market, it can (and will) be used against you!
Non-obviousness is not as clear-cut. In short, it means your invention must not be obvious. Obviousness is the act of combining two (or more) inventions - patents or things otherwise publically known. But, the examiner must combine inventions in a logical fashion, not haphazardly creating “Frankensteinien” combinations. Also, the examiner must give sound motivation for why it would be obvious for one to make the combination.
These are the two biggest things an inventor must prove. But, if you have prior patents on similar items, the examiner will be sure to check that you are not double-patenting, whether directly or indirectly, something for which you’ve already received a patent- even if a company now owns the rights to your patent.
Also, your invention must not break laws of physics, such as claiming perpetual motion or sneding/receiving signals moving faster than the speed of light - both of which have been tried - even in recent years - believe it or not.
Then, there are key weasle words which have very specific meaning in patent law which can help you steer your invention clear from the rest.
At this point, you can see why having a patent lawyer is very advantageous! Good luck! - Jinx
Good answer, but allow me to add some clarification:
Basically, it cannot have existed in the prior art. The prior art is anything that has been patentened before, or exists in the public domain. “Prior art” is a technical (legal) term. For instance, if you create, oh, I don’t know, a 1920’s style death ray, and Evil Mad Scientist Guy already has one that uses a mirror, your patent application cannot disclose “mirror” in its claims. It can, however, disclose “reflective surface” to pass the prior art hurdle (though it might not pass the non-obvsious hurdle, see below).
It’s easier (but not really) to think of obviousness as something that requires an inventive step (vice versa for non-obviousness), or rather, someone of ordinary skill in the art (e.g. creating death rays) would find as obvious. For instance, in the death ray example above, trying to patent a death ray, which was the same for all intents and purposes as EMSG’s, except you claimed “reflective surface” rather than “mirror” (EMSG’s claim), then your patent application will be struck for being obvious. There was no inventive step. However, if you claim in your patent application that using green kyptonite is as good as using the previously claimed fusion power source, and it has the extra added benefit of killing Kryptonians, then you will most likely be granted the patent.
Thinking of obviousness as an inventive step makes things easier (not really – and this will take a very long time to explain why, technically), but that is not the actual law. In Europe, the law to meet the obvious requirement centers around the issue of the patent examiner reviewing the application and seeing if a technical problem was trying to be solved. In the death ray example, let’s say that EMSG’s device was meant to kill humans. We can also say that everyone knows that green Kryptonite hurts Superman. However, it was not known that using kryptonite (an element not known for its fusion properties) could power the death ray. In Europe, the patent examiner would undertake all these steps. In the US, the examiner just wants to know if the prior art contains kryptonite as a fusion power source.
I’m not exactly sure that this is correct. If you file an application for a FTL drive, and the patent examiners dings it for impossibility, then at court, you could prove that it actually works (assuming it does). :eek:
Not necessarily. Just because you claim a “reflective surface” does not get you around the prior art. It is broader than a mirror, but a mirror still qualifies. This is a type of “obviousness” rejection, as opposed to a novelty rejection. But, you’re splitting hairs. An inventor would waste all his/her time and money fighting this losing battle up the chain within the USPTO.
Also, prior art does not have to be patented nor in the “public domain”. It is anything, published or in use by the public. Not all inventions have been patented AND are not in the public domain. To me, public domain implies the patent’s run out. But, items never even patented but in the marketplace can be used as a source of rejection.
The OP should be aware, however, that “inventive step” is an old-fashioned term within the USPTO. It is only used today when dealing with PCTs, a kinda international patent - to the layman.
And, about inventions defying physics:
You should be aware it’d NEVER even get into court! Examiners still have the RIGHT to contest if an invention can work, or not. First of all, the inventor must prove the invention has utility and solves some problem in the art hence advancing technology. But, this is a very weak rejection rarely made. Beyond this, the examiner CAN require a working model. This STILL goes on today, when deemed necessary! Last, the examiner has the RIGHT to reject an invention on functionality of the claims. If key elements are omitted, the examiner can state for the record that the invention cannot work as claimed. A lesser rejection (i.e.: an objection) can be made if the disclosure has functionality issues. I’ve had to make this several times when the applicant was “gilding the lilly” on what the invention could do without the structure to do so.
- Jinx
Actually, with respect to software patents at least, you can patent just about anything. The US patent office is so screwed up right now that very little does not get accepted, even if there is prior art or if it is obvious. However you may lose in court if it gets challenged down the road, they do appear to actually review the validity of the patent claim at that point in time, but it does not appear they check much in advance.
And for those of you that think I’m just ranting and not giving a factual answer, I would be happy to provide cites.