First I will have to inform you, that US and European patent practice is somewhat different, and I may mix up some of the points, further please note that this is not to be considered as legal advice only a brief introduction. I strongly recommend that you seek professional help. Further patent information is available at The VRN Patent Pages. The VRN Patent Pages are a comprehensive collection of links to patent FAQs, patent offices, patent acts, patent attorneys, patent searching and other patent related information. Check it out!
An invention must meet two main requirements at the time of filing of the patent application:
There are further important requirements, but these are normally met per se; so generally that’s it. Both the above mentioned requirements apply for the US as well as the rest of the world and they are assessed by the (each) patent authority on the basis of the prior art, i.e. "what is known".
The invention may not have been disclosed (or made available) in ANY way to the public. That is in writing, orally, as drawings or in electronical form ….. no-matter the language !…… Another way to say this is, that the invention may not be part of any prior art. That is to be understood as a requirement for global and absolute novelty! However, this requirement is interpreted differently in the US and in "the rest of the world". In the US the inventor himself may disclose his invention before filing the patent application (for up till one year before filing). It's called "grace period". Only other peoples disclosure will be novelty-destroying. In almost all other countries ALL disclosure is novelty destroying. For safety reasons: NEVER EVER DISCLOSE YOUR INVENTION TO ANYONE (but people under secrecy-agreement or your patent attorney) BEFORE FILING THE PATENT APPLICATION!
One of the reasons for the differences in practice is the US-tradition of "the true and rightful inventor" as owner of the right to a patent and the European tradition of being practical rather than ethical saying "first filed patent application gets the rights". (Of course we've got methods of solving problems regarding the true and rightful owner of a patent as well, but we think that’s more a matter to be decided in court than a matter to be decided by the patent office or patent law). Normally the two underlaying principles are referred to as "first to invent" and "first to file" respectively. Both systems offers pro’s and con’s.
The invention must be not-obvious in view of the "closest prior art". This is in European patent practice called involving an "inventive step". In practice it means that combining trivial details in a new way doesn’t make it an invention. You might for instance mix beer with a pain-killer and call it an invention. But all you get is the mere effect of each of the beer and the pain-killer. In fact, thinking about it, you might not even get that. (Bad example...).
You probably think your invention is very inventive, however, what you need is a good objective argument that a person skilled in the art would not arrive at the invention without being inventive and/or without undue burden (experimentation).
The closest prior art may be determined in two ways:
Preferably the closest prior art is both. The prior art used by the patent authorities are typically prior published patents and patent applications, but it may also be articles from magazines and/or books and the like. Anything, in any form goes! By the way - US patent applications are normally not publicly available, but all other countries publish patent applications after 18 months from the priority date.
Tons of books are written regarding how to prove an inventive step. It all comes down to how good arguments you have: A "well-known" Danish patent attorney (not me) is known to say that, given novelty, proving an inventive step is only a matter of how much money you pay your patent attorney. He’s not completely right, but it’s a good image.
Relatively good arguments for inventive step or non-obviousness are:
In the US you may also use arguments such as
The latter arguments would normally not work in Europe. If your invention fulfill the above mentioned criteria it may be patentable. If you’re planning on drafting your own patent application, I strongly recommend that you read some more information on how to do so. Take particularly care of the topics "claim-drafting", "enablement", "sufficiency of disclosure" and for the US also "best mode". To draft a patent application isn't easy, and it's only the first step in a long journey before you might get your patent. That's why people like me can earn a living.
For more information on patents and patenting: Try The VRN Patent Pages by clicking on this text.
Best regards, Vagn R. Nissen