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July 24, 2023
John Rizvi, Esq.

Can You Get a Patent on Your Idea?: How to Find Out if Your Invention is Patentable

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00:05

This question is, how do I know if my idea is patent patentable? Okay, that's great. It's such a common question, how do I know if my idea is patentable? The first thing you need to do is check to see if it's in one of the four statutory classes that that can be patented. And I know Gabi will be typing these into the chat room. Because I've been told as a professor for for 20 plus years that my handwriting is not the best, this took a long time to write out. But the rest of it, I'm not going to take that long. So the four categories, the first one is a machine. O. Machine. Second, is an article of manufacture. And I'll just abbreviate, I'll just stop with article. But um, GAVI should have that in the chat room. The third category is a composition of matter.

01:04
And then finally, and this is one that's getting a lot of traction and a lot of interests these days. And that's a process, also a method. So machine. Article manufacture composition for a process. So your idea has to fit within one of these four categories. If it doesn't, I practice all areas of intellectual property, it might be a protected, you might be able to protect the brand with a trademark, you might be able to protect creative writing and advertising, and video and books and articles with a copyright. But if you want a patent, and this, we're going to focus primarily on patent questions today, if you want a patent, your idea has to fit one of these four categories. So that's the first step. That's the first thing to check for, for patentability. Now, if your idea fits one of these four categories, then there's something else to check that as well. I'm going to put this up here, because that might be coming back to this in a moment. But these are the four categories for patentable subject matter. Now, if you have patentable subject matter what you need next, you have to fit these three requirements. The first one is novelty. Second, is utility. And I'm gonna explain what each of these are in a second. And the third requirement is non obviousness.

02:47
So you've got to have novelty utility non obviousness, not necessarily in that order. A lot of times you'll see utility novelty non obviousness, novelty is that your idea has to be new, it can't add. Oftentimes, in my practice, I'm contacted by inventors that might see something in a foreign country that they think would do phenomenal in the United States. And they want to know if they can import the idea and get a patent for it in the United States. The answer is no. Patents are not for importers of new ideas. They're for inventors. So it has to be an original new idea. That's novelty. Now utility, the idea has to be useful, which the patent office is not going to get into the merits of whether an idea is actually useful. You're not going to look at, say the Rubik's cube, and make a judgement on whether this is a good game or an interesting game or something that the world needs. That's not their job by utility, basically, does the idea do what it purports to do? If it does, then it meets the utility requirement for patentability. And then finally, non obviousness, even if your idea is new, and this is what a lot of people are confused by, that even if the idea is new, you can't necessarily get a patent just because it's new. If a patent examiner believes that the idea is, is optimal. So I will we might come back to this one. Let me just put it up right here. So now, you've got the three categories, the four categories machine article of manufacture, composition of matter, or a process. And then your idea has to meet the novelty utility and non obviousness standard. And if you meet those, then you can then proceed with patent with pursuing a patent. Now the patent examiner is going to look at novelty utility and non obviousness as well and make a decision so that's what a good patent attorney will be able to advise you, not just secure ideas new. But if it's enough of a change over what's already out there to be seen as non obvious. Now, what are some obvious variations? There might be times when these things are not obvious variations. But some clear ones that you want to be suspect for is color, if all you're changing is the color of a product, unless that color is overcome some obstacle in manufacturing or provide some really unique difference, color is not considered a non obvious change. The second is the shape. So if we're talking about a utility patent, the changing the shape, generally, if something's rectangular, and you say your idea is square, you have to find some advantage to it being square. And you have to find a reason why it's a non obvious change why it wouldn't be obvious to take some that same component that's rectangular and make it square. So you've got some hurdles, if all you're changing is color, shape, and of course, size. So if you have an idea that that you think is already out there, but you have been able to produce it much smaller or much larger. That in itself is an obvious variation. Unless you can show that it's there's some difficulty in making, meeting the size requirements. An example of that would be originally there was a huge challenge with hearing aids to create the components small enough so that they would fit within the auditory canal. And that case size would be could be considered a non obvious difference. But generally, it is not. So terrific question, unfortunately, was the easier question to ask them to answer like what's past what is patentable, but those are the things you're looking at. Before I go forward, though, I just want to bring, just clarify that, that not all ideas are, are have to be complicated in order to get a patent. Like there's some really simple ideas that some examples here. a post it note, for example, incredibly simple. Simply paper with removable glue. There's nothing highly complex about it. But it's a patented idea by 3pm. And makes over a billion dollars in profit per year. So you don't have to have complexity. Another item that is commonly understood, and people are surprised when they find out that there's a patent on this sleeve. So the simple cardboard sleeves that goes on to a a cup of coffee so that your fingers don't get too too high. That's a patentable, it's patentable subject matter and can be protected. So don't look at there's no requirement if you remember the requirements we have up here, machine article composition of matter and process. Nowhere on that list does it see flux capacitor, or rocket science, there's some there's no complexity requirements and the other requirements of novelty utility. And non obviousness there's no requirement for complexity, sometimes simple ideas are protectable. One last example. And that's this, Ron Brown is the inventor of this container combined with a label and you might say there's nothing unique about this label. While there is the label is placed on the on the container upside down. And what that does, the human mind is not comfortable with seeing lettering upside down. So the natural inclination is to take this and turn it around. And when you store it in your your cabinets, you store it this way, which has that advantage that the ketchup, you don't have to hit the bottle to get the ketchup out. phenomenal idea. Extremely simple. And it's a combination of three different items. And that's taking the container that squeezable, I'm going to hold it up and you can tell it's not glass, so it does squeeze. So that's one component, a label that's reversed to encourage people not to store it in this configuration, but to store it upside down. And then finally, the third is to have a leak proof nozzle so that if it's upside down, it doesn't just spill all over the place. So you can tell these three components in combination also constitute patentable subject matter. And this is a big, big missed by a lot of inventors because they will see that for example, idea A is already out there. Idea B is already out there and idea C It is not new either. So when you have these three ideas, neither one of them are patentable on their own because they've already been patented. But the inventor of that takes three known ideas and combines them in a new, useful and non obvious way together. They're the ones that will get the patent. That's what Ron Brown did with his bottle. He took three ideas that separately already existed, the label existed, the squeezable container existed, and a special nozzle existed. He took them in a unique configuration, combine them together, and was able to get a patent on his idea that by the way, he was able to sell for $13 million. So it's not complexity. That's that's the overriding factor when you're trying to apply for a patent

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