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Archived updates for Sunday, January 21, 2007

General Requirements for Obtaining a Patent

As discussed in "General Information about Patents" available from the U.S. Patent and Trademark Office website, in order to obtain a patent, an invention must be useful, new, and not obvious to one of ordinary skill in the art. The usefulness requirement is easily met by most commercial products such as this one. With regard to "novelty" and "non-obviousness," however, there are two categories of "prior art" that will prevent the issuance of a patent.

The first type of prior art is information concerning the invention being "known or used by others in this country," or "patented or described in a printed publication" anywhere in the world before the invention was completed. The completion date is generally when the invention was conceived as long as the inventor diligently works toward "reducing the invention to practice" such as by building a model or getting a patent application on file. The second type of prior art concerns the invention being "patented or described in a printed publication in this or foreign country," or in "public use or on sale in this country," more than one year before the date that a patent application is filed in the United States.

However, since most countries (besides the U.S. and Canada) do not provide inventors with a one year grace period against publications and/or public uses, we generally recommend filing a U.S. patent application before any public disclosure of the invention in order to preserve any foreign patent rights. With regard to U.S. patents, it is also important to remember that they become effective as prior art on their U.S. filing date, rather than on the later date on which they are actually published.

Even if the subject matter sought to be patented is not exactly shown by the prior art, a patent may still be refused if the differences between the prior art and the claimed invention would have been "obvious to one of ordinary skill in the art" at the time the invention was conceived. In essence, the Patent Office will look for some teaching in the prior art that suggests combining features from different references in order to arrive at the invention. Objective evidence of non-obviousness, such as criticality or unexpected results, commercial success, long-felt but unsolved needs, failure of others, skepticism of experts, etc., must then be submitted by the patent applicant in order to refute obviousness determinations.
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