There are two basic requirements any invention must meet in order to file a patent application. Of course there are other requirements too, but this post focuses on what is arguably the most basic patentability requirements.
First, is your invention new? Section 102 of the US Patent Laws requires that your invention be unique or “novel”. If you haven’t figured it out already, you can’t patent someone else’s idea or an idea that is already on the market – it isn’t any invention. It is usually fairly easy to determine whether you have met this requirement. If you’ve seen something else just like your idea on the market, or if you read about your idea in a trade journal or news article, then you know your idea is not new.
Second, is your invention non-obvious? Section 103 of the US Patent Laws requires that your invention not be obvious (or that your invention is non-obvious). But what does non-obvious mean? Your invention might be obvious if someone having ordinary skill in the relevant art would think of your idea when considering the state of the art as a whole.
In other words, if your invention is to make a software application (that is already available for desktop computers) available on a mobile phone, it is likely that your idea is going to be considered obvious. All you’re contributing to the so-called “invention” is rewriting an existing computer process for a mobile phone platform.
Don’t be offended. When I tell an inventor that their idea might be obvious, their immediate response is “I’ve never seen it before – if my idea is obvious, then why haven’t I seen it in the marketplace already?” This answer goes more to the first requirement – that your invention may be novel, but might still be obvious. The Examiners at the US Patent Office are allowed to cite multiple references (sometimes they cite to 3 or 4 or even more) and say that the combination teaches every aspect of your invention.
How can you tell if your invention is obvious? It is often difficult to determine if your invention is obvious. What one person might consider obvious, another person might consider to be non-obvious. A lot of time and money can be spent arguing with the Patent Examiners whether an invention is obvious or not.
Don’t just assume your idea is obvious. Even in the example above, your invention to make a software application available on a mobile phone might be not be obvious if you have to change way the software functions in some (non-obvious) way in order to make the software operate on a mobile phone. If you think your invention might be patentable, talk to a qualified patent attorney to learn the different considerations specific to determining whether your invention is obvious or not.
