PATENT: WHAT DO YOU MEAN UNIQUE?

We showed before that in order for an invention to be patentable, it has to be “new." That is - new or "unique" as defined in the law. The law provides that an invention cannot be patented if: (More legalese)

• “(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the application for patent,” or

• “(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country more than one year prior to the application for patent in the United States . . .”

SO --

• if the invention has been described in a printed publication anywhere in the world, or

• if it has been in public use or on sale in this country, before the date that the applicant made his/her invention
  --- no patent.

OR --

• if the invention has been described in a publication anywhere in the world, or

• it has been in public use for more than one year before the patent application is filed in the US --- no patent.

This holds true even if it is the inventor himself that made the printed publication - or public use - or sale of the invention. The inventor must apply before one year goes by if the invention has been exposed in any way to the public - or the right to a patent is lost.

Another catch is tied to the term “non-obviousness.” A patent may be denied to an invention if there is existing “art” in the field and the new invention is an improvement on this “prior art.”

If the differences between the existing things in a field and the new invention would be “obvious” to a person having “ordinary skill in the industry related to the invention” - a patent can be denied.

For example - the substitution of one material for another or a change of size of an object would not allow it to be patented. If such a change could be “proven” to relate to a new use of the object that no could have thought of -- that’s the argument.

The inventor’s argument from his side of course is - “if it was so obvious - why didn’t someone do it?”

That is one reason why the patent process is relatively long. The patent examiner is coming up with reasons why the invention is not unique - or is obvious - and the inventor (through his attorney) is arguing and trying to convince of the opposite.

That’s the game - be ready for it. The more ducks you have in a row to prove the uniqueness and non-obviousness of your invention from the start - the better off you will be.