Before getting to know the requirements on how to file a patent, it is important to first have a good understanding on what a patent is.
A patent, generally speaking, is:
- The right of ownership granted by a country’s patent governing body, enforceable in the region or country where the application for patent is filed, based on the filed patent application. No single patent is globally recognized.
- The right to prevent anyone from exploiting your invention commercially – including the patent owner himself, if doing so will infringe on other patents, other people’s rights, or break the law.
- The right to enjoy exclusivity over the patented product for 20 years from the filing date of the patent application.
- The right to the invention that can be enforced only by the patent owner
- The protection given for industrially applicable and technical inventions.
Basic Requirements for Patent Application
While there are many requirements to be complied with, there are only two important requirements that must be met at the time of submission of a patent application:
- It must be for a new invention.
- It must be for a non-obvious invention, meaning there are inventive steps involved.
These two requirements are applicable in the United States and in most other countries around the world. The other requirements are only minor and are usually complied with once the two major requirements are satisfied.
It Must Be for a New Invention
The patent applied for must be for an invention that has not been made publicly available whether in writing, orally, as drawings or illustrations, or in digital form, in any language. In short there must be no “prior art.”
While this is the common rule in worldwide, there are different ways of interpretation.
For example, the US allows the inventor to disclose the invention before an application for patent is filed, but only within a 12-month period before the filing date. This will not violate the “novelty” requirement. However, it is a different story if the disclosure is done by other people
There are countries that consider any type of disclosure as violations of the novelty rule. Thus, you should refrain from revealing key aspects of your invention before your patent application is actually filed – even to people who have signed a secrecy agreement.
The different interpretations may be due to varying ways to determine who owns the patent rights. In the US, the tradition of “the true and rightful inventor” is being observed.
Europeans are more practical in the sense that they follow the “first filed application owns rights” tradition. However, this may not necessarily be the more ethical way to determine patent ownership.
The American and European traditions are the most commonly followed traditions and are also commonly known as the “first to invent,” (American) and the “first to file” (European) principles. Each one has its own pros and cons.
It Must Be for a Non-Obvious Invention
The term non-obvious should be in relation to the closest nearest prior art. In Europe, this is known as having inventive steps. In essence merely rearranging a series of minor details in another way doesn’t make the product non-obvious.
If you think that your invention is “very inventive,” you have to back it up with solid and objective arguments that anyone who is sufficiently skilled in the niche would not have come up with the same idea as yours without going through the tedious process of experimentation and being inventive.
Determining Prior Art
Basically, there are two ways to determine the closest prior art that is applicable to your invention.
- It is the product or invention that is most similar to yours in terms of addressing the same problems and needs.
- It is the product or invention that is most similar to yours in terms of the number of common features.
Ideally, the closest prior art should meet both criteria. Usually, when checking for prior art, patent examiners refer to issued patents or pending patent applications. They may also refer to publications such as magazine articles, books, and other similar references.
In the US patent applications are not publicly available. Thus, if you intend to file a patent, make sure you do your homework and have a patent search done.