After you submit your application for patent registration to the United States Patent and Trademark Office (USPTO), your application will be examined by a Patent Examiner. The Examiner must evaluate your application for patent registration on several criteria.
The three main criteria a patent application must pass are the following:
1. The invention is allowed by law.
2. The invention is original or novel.
3. The invention is useful.
Patent law allows four types of inventions to be registered as a patent depending on the following:
1. A process is a procedure for accomplishing a tangible result.
2. A machine is made or constructed, and not something occurring naturally.
3. An article of manufacture is something which is created by a manufacturing process.
4. A composition of matter is created by uniting various elements.
It is common knowledge that an invention must be new or novel in order to be eligible for patent registration. It would be nice if I could just give you a definition of what is considered new, but I can’t do that. The reason is that the patent law states the definition as a negative, meaning that instead of saying what it is, the law says that it is new unless it runs afoul of one of the stated things that make it not new.
Perhaps because of the negative definition, getting into the details of what is new or not new has been heavily disputed in the United States Patent and Trademark Office and in the courts. Thus, because of these many disputes, it is beyond the scope of this article to explore all of the variations of what is new.
However, I can give you a general idea of what is new for patent purposes, You can think of something as being new under the law unless someone else invented it first or the invention was publicized or used more than one year before the application for patent registration was filed.
Another flavor of newness is what we call “obviousness”. It is human nature that once you see what another person has created, your mind immediately starts thinking of how to either improve it or to come up with alternatives to it. Because of this, the patent law requires that in order to be eligible for patent, your invention must be “non-obvious” over the prior invention or group of inventions it is compared to.
The non-obvious requirement for patent is stated by saying that if the new invention was “obvious” to a person who is of ordinary skill in the art of the invention, then the application for patent registration is not entitled to a patent.
Patent examiners at the USPTO will evaluate the application using three basic criteria. But since each test must be applied to each application for registration of patents, targeting these criteria is complicated, so there are many rules and procedures to be followed by the examiner.
The guidance for the Examiner are in the form of rules that a Patent Examiner must follow in evaluating your application for patent registration. These are codified in the United States Code of Federal Regulations and the Code of Federal Rules. The USPTO also publishes their own 2,000 plus page Manual of Patent Examining Procedure that further explains the federal rules for the Examiner.
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