2. DETERMINE WHETHER YOUR INVENTION IS PATENTABLE

If you've created something that fits into one of the four categories of utility patents, you're probably just itching to patent it and make some money. But we have some bad news: not everything can be patented. Your invention will have to meet three requirements before it will be accepted: novelty, non-obviousness, and utility. We'll discuss them each in turn.

Novelty
Non-obviousness
Utility

Novelty

Your invention must be new and different from anything that has been available to the public before. That means that at the time you're interested in getting the patent, you must be able to answer "No" to all of the following questions:

  1. Has the invention already been patented? (See step 3 for help in answering this.)
  2. Has the invention been described in a printed publication?
  3. Is the invention known to others?
  4. Was the invention used by others before you invented it?

If you answered "No" to all of these questions, then chances are good your invention is novel. It's okay if other people have thought of the same invention, just so long as they didn't spill the beans to everyone else. You can find out more about the novelty requirement at the website of the U.S. Patent and Trademark Office (USPTO).

Non-obviousness

Your invention must not have been obvious to an expert in the field. There's really not a whole lot to go on here; this requirement is satisfied if the patent examiner decides that it is. This subjectivity makes it difficult to guide you, but here are a few questions you should ask yourself:

  1. Though your idea is new, would the invention be obvious to someone skilled in that field?
  2. Does this invention answer some long-felt need?
  3. Is the item commercially successful? (This can be determined after the inventor has filed a provisional patent application or has patent pending status.)
  4. Do other people who are skilled in the same area express surprise or admiration for the invention?
  5. Do a lot of people want to purchase licenses to manufacture the invention?

If you answer "No" to the first question and "Yes" to one or more of the rest of the questions, you're probably on solid footing. See the USPTO's website for more information about non-obviousness.

Utility

This last requirement isn't very stringent, but it can't just be assumed either. Your invention has to be useful for something (even if it's a silly purpose). For instance, you can't get a patent for a process which produces something for which there is literally no use, or a drug which has not been fully tested, or for an invention whose sole purpose is an immoral or illegal one. (For those of you wondering, the Pet Rock was patented because it has two uses: entertainment, and moron-detector.)

Patenting is important, because it allows inventors to make money off of their inventions, and this incentive encourages us to create things or improve sucky things. But as we said above, there are rules about knocking off someone else's product. You can't just take a yo-yo and call it a zo-zo. It has to be different enough so that no one with a brain would think that it was the exact same thing. Finding out if your product is too similar to someone else's is a job for your patent lawyer (which you will eventually need), but you first have to find out if someone else has already thought of your idea and tried to patent it. To do that, you need to conduct a patent search. (And surprise surprise, that's our next step!)