Patent Requirements: Everything You Need to KnowPatent Law ResourcesHow to Patent an IdeaProvisional PatentPatent PendingDesign PatentPlant PatentUtility Patent
To see if your invention or design is eligible to be patented, it must be statutory, new, useful, and non-obvious. These are the four patent requirements. 4 min read
Patent Requirements: What Are They?
Patent requirements are an important part of how to patent your idea that uses four tests to see if your invention or design is eligible to be patented:
- It is statutory?
- Is it new?
- Is it useful?
- Is it non-obvious?
These four patent requirements are also known as patentability requirements and patent eligibility. The United States Patent and Trademark Office (USPTO) establishes these guidelines. If your design or invention passes all four tests, it meets patent requirements.
Steps to Assess Patent Requirements
A provisional patent application is for utility patents only. For many inventors, this is the first step toward confirming patent eligibility.
- Statutory Subject Matter Requirement
This determines whether the invention includes subject matter that can be patented. You can't patent every type of subject matter. You can patent the following:
- Articles of manufacture
- Compositions of matter
You can't patent the following:
- Data structures
- Books and music
- Laws of nature
- Abstract ideas
- Novelty Requirement
This determines if the invention or design is new. If it isn't included in a public disclosure, a sale, or printed material more than a year before you file a patent application, it's considered novel. If you want to sell or market an invention, you must file a patent application within one year.
- Usefulness Requirement
This determines if the invention or design is useful. Your invention or design must perform its intended function. If it works and has practical utility, it's considered useful.
- Non-Obviousness Requirement
This determines if the invention or design is non-obvious. If it isn't obvious to an average person, it's patentable. Do a patent search to see if other inventors have patented similar inventions. These existing inventions are known as prior art. If they have features similar to yours, your invention might be obvious. This requirement can be subjective, so you may need to argue this point with the patent examiner.
Examples of What Happens When You Meet the Patent Requirements v. When You Don't Meet the Patent Requirements
- When You Meet the Patent Requirements
Your invention or design is patentable, and you can file a patent application. This will protect your intellectual property.
- When You Don't Meet the Patent Requirements
Your invention or design isn't eligible for a patent. You might be able to modify your invention or design to meet the requirements, though. Talk with a patent attorney to learn about your options.
In addition to the main patent requirements, your patent application has to include some additional conditions. Don't make the mistake of forgetting these:
- Enablement Requirement
All patent applications must describe how to make and use the invention or design. The average person should be able to read the application and build a prototype.
- Best Mode Requirement
All patent applications have to describe the best way to use the invention. This is considered the best mode or preferred embodiment.
Frequently Asked Questions
- What Types of Patents Are Available?
There are three types of patents available. All must meet patent requirements:
- Utility Patents: These protect machines, systems, and inventions.
- Design Patents: These protect the look of an object or non-functional designs. They are exempt from the utility requirement.
- Plant Patents: These protect the discovery of a plant, asexual plant reproduction, and sexual reproduction of plant seeds.
- Should I File a Provisional Patent Application?
Yes, if you plan to apply for a utility patent. Follow these steps to apply:
- Written Description: This includes the title, purposes of the invention, description of drawings, components and how they interact, how to use the invention, best mode, advantages, and alternative ways to get results. You should also list inventors.
- Drawings: These depict your invention and what makes it unique.
- Filing Fee: The provisional filing fee for a large business is $260. It's $130 for a small business and $65 for an individual.
- Should I Apply for a Full Patent?
Yes, if your invention or design is patentable. You have to apply within a year of filing a provisional filing application. Include the following main parts in your application:
- Abstract: This gives a short look at your invention or design.
- Description: This explains your intellectual property. It includes a title, background, summary, and description of the preferred embodiment.
- Claims: These cover the scope of your intellectual property.
- Figures: These are the illustrations that depict your invention or design.
- Where Can I File a Patent Application?
If you're a U.S. citizen or resident, you can file with the USPTO. If you live in another country, file with your local patent office.
- Where Can I File an International Patent Application?
There is no such thing as an international patent. You can apply for a patent under the Patent Cooperative Treaty (PCT), though. This helps you build a case for global patentability. After you apply with the PCT, you can file your patent in different countries.
If you need help with understanding patent requirements, you can post your question or concern on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.