“Is My Idea Patentable?”
One of the most common questions I get is “how much does a patent cost?” our response for this question that we can I can give you right off the bat, you can go to: https://thompsonpatentlaw.com/cost/ and we have some unique information there that you won't find anywhere else.
This will give you some background as to what are the primary drivers of patent costs that no one else is talking about.
“Can I get a patent on my idea?”
But another question that I get very frequently is, “Is my idea patentable?” or, “Can I get a patent on my idea?”
That's a great question, I wrote another resource for that in my book, Patent Offense: 7 Steps To A Safe, Secure Patent Portfolio the first three steps of my seven step process. In the first in that book the first three steps are all about answering the question “what if anything can I get a patent on?”
It ultimately culminates in what I call a point of novelty. If you can identify a point of novelty you can get a patent on it.
What is novelty?
But what is novelty? Really its novelty combined with also non-obviousness. It can be novel meaning; the exact same thing doesn't exist anywhere it’s not in the prior artist no one's written about it there any nobody's selling it. That’s not enough to get a patent. There's the question of obviousness I want to talk about. Whether something's obvious or not is different if it's a slight variation.
What is slight?
How far does that go?
I can't give a general answer to that but let me give you the fundamental rule from the Supreme Court decision in 2007.
It’s called the KSR decision. So that you can at least have a framework to start with. We can help you with the individual facts of your particular invention. It really depends on the prior art and a lot of other things.
This is just kind of how the mechanics of how it works on the Patent Office, once you file your patent application with some claims it gets reviewed by the patent examiner patent examiner's job typically is to try to find prior art that shows that your idea is already out there.
If you can find it's all described in one document that's called anticipation. It’s not novel. If not, and you can't find a single document that has everything that's in your idea or in your claim, maybe missing one or two features, well the examiner can take the one document and say this document teaches A, B, and C of your claim, but your claim says A,B,C,D, and E.
The first document I found this first say it's a patent it teaches A B and C but not D and E okay in your claim as D and E in it. well he can find another patent and say well this one has A B and D it doesn’t have claims C or E but it's got A, B, and D.
If I could take this widget offered that he describes in this patent and put it on A, B, and C over here, now we've got A, B, C, D, and E.
Then the examiner can take a journal article from IEEE and find some discuss in there of item E that applies to A,B,C, and D. the Examiner could then say “you take this from here and this from here this is all known.”
The examiner could mix it together and come up with this “Franken system” called A,B,C,D, and E which is exactly what you're claiming. And therefore your claim is obvious.
The examiner will claim it would have been obvious to come up with your invention because of this. That's where we come in and argue with the examiner.
preparing for the argument
The way we do it is by setting it up to give you the maximum ability to try to prepare for that argument and lay the foundation before you even file your patent application. That's the right way to do it. That's why I wrote my book; what do you do before you file your patent application. Or, should you even file a patent application.
The Supreme Court said about obviousness, now that you know a little bit about what obviousness is practiced in the Patent Office when you file a patent application, here's the law that under underlies what the examiner can and cannot do and what we can argue to say the examiners right or wrong. If you had to enforce your patent for 10 million dollars the court would say, “You can take these two or three references and put them together and come up with your claim question.”
a person of ordinary skill in the art
The court would ask “would a person of ordinary skill in the art have been led to make the combination of these two or three prior art patents and have a reasonable expectation of success?” The rule is, a combination of familiar elements combined according to known methods known methods is likely to be obvious when it does no more than yield predictable results. That's a guideline but it's a fact intensive discussion. A lot of people make a lot of mistakes. For example, I'm an electrical engineer I was a little designing stuff for ten years before I ever went to law school as an electrical engineer. And as an electrical engineer in a certain field of circuit design and power supply, to me, a lot of stuff seemed obvious but still people get patents on it because I was maybe had a higher level than ordinary skill. A lot of Engineers are guilty of this, very intelligent people, businesspeople or just people who are very highly skilled in an area where tend to be inventors.
They tend to overestimate what the ordinary level of skill is. If that's you and you're reading this, you are overly skilled, and things seem obvious to you, but they're not obvious to a lot of ordinary people with ordinary skill in the art. It's from that perspective and then there's you know what's predictable or not predictable are all factual things they could go either arguments either way. A lot of people who are overly skilled tend to dismiss ideas as not patentable and they're leaving a lot of money on the table because they think, “it's just not worth it that that'd be too easy.”
A lot of times they are surprised and until they get you know see enough of it. If you're a busy person you're not studying a lot of patents usually, unless you're a patent attorney. I've seen this over and over and over again where people said, “I can't have that” and then we do.
On the opposite side some people who have you know did you know they're not calibrated correctly under the KSR rule on obviousness they think that things are more obvious than they are. This guideline I'm giving this to you so that you can think about and ask you know better questions regarding your invention as to whether it's patentable or not patentable. don't be too quick to dismiss. It’s a Goldilocks rule , don't be too quick to dismiss, and don't be too quick to say yeah that's patentable for sure, try to be just right. Follow the proper calibration and we can help you with that.
Owens Corning V. Fast Felt Corporation
In the case Owens Corning V. Fast Felt Corporation, Owens Corning was successful in in validating a patent to depositing nail tabs under roofing shingles. There was a patent that have been issued and they got a court to invalidate that patent because the issue of obviousness came up.
In that case the combined the combining of the references involves mere substitution of one well-known polymer deposition technique using novel sprays for another well-known polymer deposition technique using gravures to obtain predictable results. It is application of the KSR rule.
You now know more now than 98% of the people do about patent obviousness and so that when you look at your inventions you're a little bit more prepared to think, “is this something I should try to get patent on or not?” Hopefully it's not going to calibrate you but at least your kind of maybe looking at it with the proper lens anyway.
Here at Thompson Patent Law that's what we do all day every day with the Patent Office. Inventors getting patents, we'd love to help you figure out your patent. A lot of times the first thing we do is we figure out and tell people not to get a patent on something until after we do a preliminary search.
I HIGHLY recommend his firm
Craige Thompson has been helping our company with IP issues for a number of years now. I HIGHLY recommend his firm. And no he doesn't give me one cent off my bills for saying this! Previous firms just wanted to bill us, Craige just wants to make sure our IP strategy makes dollars and sense.