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There are numerous conditions that must be met in order to obtain a patent and it is not possible to compile an exhaustive, universally applicable list. However, some of the key conditions include the following:
I think it varies country to country. if it is in India the following can be taken into consideration;
An invention must satisfy the following three conditions of :
(i) Novelty (ii) Inventiveness (Non-obviousness) (iii) Usefulness
Novelty : An invention will be considered novel if it does not form a part of the global state of the art. Information appearing in magazines, technical journals, books, newspapers etc. constitute the state of the art. Oral description of the invention in a seminar/conference can also spoil novelty. Novelty is assessed in a global context. An invention will cease to be novel if it has been disclosed in the public through any type of publications anywhere in the world before filing a patent application in respect of the invention. Prior use of the invention in the country of interest before the filing date can also destroy the novelty. Novelty is determined through extensive literature and patent searches. It should be realized that patent search is essential and critical for ascertaining novelty as most of the information reported in patent documents does not get published any where else.
Inventiveness (Non-obviousness) : A patent application involves an inventive step if the proposed invention is not obvious to a person skilled in the art i.e., skilled in the subject matter of the patent application. The prior art should not point towards the invention implying that the practitioner of the subject matter could not have thought about the invention prior to filing of the patent application. Inventiveness cannot be decided on the material contained in unpublished patents. The complexity or the simplicity of an inventive step does not have any bearing on the grant of a patent. In other words a very simple invention can qualify for a patent. If there is an inventive step between the proposed patent and the prior art at that point of time, then an invention has taken place. A mere 'scintilla' of invention is sufficient to found a valid patent.
Usefulness: An invention must possess utility for the grant of patent No valid patent can be granted for an invention devoid of utility.
What is a Patent?
A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. Generally, the term of a new patent is20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions. Under certain circumstances, patent term extensions or adjustments may be available.
The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. Once a patent is issued, the patentee must enforce the patent without aid of the USPTO.
There are three types of patents:1) Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and3) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
What Is a Trademark or Servicemark?
A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms “trademark” and “mark” are commonly used to refer to both trademarks and servicemarks.
Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks that are used in interstate or foreign commerce may be registered with the USPTO. The registration procedure for trademarks and general information concerning trademarks can be found in the separate book entitled “Basic Facts about Trademarks.” .
What is a Copyright?
Copyright is a form of protection provided to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.
The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress.
Patent Laws
The Constitution of the United States gives Congress the power to enact laws relating to patents, in Article I, section8, which reads “Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Under this power Congress has from time to time enacted various laws relating to patents. The first patent law was enacted in1790. On July19,1952, the patent laws were codified in Title35, United States Code. The Leahy-Smith America Invents Act, Public Law112-29,125 Stat.284 (September16,2011) revised Title35 effective March16,2013, to change the U.S. patent system from a “first to invent” system to a “first inventor to file” system. The patent law specifies the subject matter for which a patent may be obtained and the conditions for patentability. The law establishes the United States Patent and Trademark Office to administer the law relating to the granting of patents and contains various other provisions relating to patents.
What Can Be Patented
The patent law specifies the general field of subject matter that can be patented and the conditions under which a patent may be obtained.
In the language of the statute, any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent,” subject to the conditions and requirements of the law. The word “process” is defined by law as a process, act, or method, and primarily includes industrial or technical processes. The term “machine” used in the statute needs no explanation. The term “manufacture” refers to articles that are made, and includes all manufactured articles. The term “composition of matter” relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds. These classes of subject matter taken together include practically everything that is made by man and the processes for making the products.
The Atomic Energy Act of1954 excludes the patenting of inventions useful solely in the utilization of special nuclear material or atomic energy in an atomic weapon. See42 U.S.C.2181(a).
The patent law specifies that the subject matter must be “useful.” The term “useful” in this connection refers to the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.
Interpretations of the statute by the courts have defined the limits of the field of subject matter that can be patented, thus it has been held that the laws of nature, physical phenomena, and abstract ideas are not patentable subject matter.
A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine. A complete description of the actual machine or other subject matter for which a patent is sought is required.
Novelty And Non-Obviousness, Conditions For Obtaining A Patent
In order for an invention to be patentable it must be new as defined in the patent law, which provides that an invention cannot be patented if:
“(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention” or
“(2) the claimed invention was described in a patent issued [by the U.S.] or in an application for patent published or deemed published [by the U.S.], in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.”
There are certain limited patent law exceptions to patent prohibitions (1) and (2) above. Notably, an exception may apply to a “disclosure made1 year or less before the effective filing date of the claimed invention,” but only if “the disclosure was made by the inventor or joint inventor or by another who obtained the subject matter disclosed… from the inventor or a joint inventor.”
In patent prohibition (1), the term “otherwise available to the public” refers to other types of disclosures of the claimed invention such as, for example, an oral presentation at a scientific meeting, a demonstration at a trade show, a lecture or speech, a statement made on a radio talk show, a YouTube™ video, or a website or other on-line material.
Effective filing date of the claimed invention: This term appears in patent prohibitions (1) and (2). For a U.S. nonprovisional patent application that is the first application containing the claimed subject matter, the term “effective filing date of the claimed invention” means the actual filing date of the U.S. nonprovisional patent application. For a U.S. nonprovisional application that claims the benefit of a corresponding prior-filed U.S. provisional application, “effective filing date of the claimed invention” can be the filing date of the prior-filed provisional application provided the provisional application sufficiently describes the claimed invention. Similarly, for a U.S. nonprovisional application that is a continuation or division of a prior-filed U.S. nonprovisional application, “effective filing date of the claimed invention” can be the filing date of the prior filed nonprovisional application that sufficiently describes the claimed invention. Finally, “effective filing date of the claimed invention” may be the filing date of a prior-filed foreign patent application to which foreign priority is claimed provided the foreign patent application sufficiently describes the claimed invention.
Even if the subject matter sought to be patented is not exactly shown by the prior art, and involves one or more differences over the most nearly similar thing already known, a patent may still be refused if the differences would be obvious. The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be non-obvious to a person having ordinary skill in the area of technology related to the invention. For example, the substitution of one color for another, or changes in size, are ordinarily not patentable.
