Patentability Criteria

"What criteria must an thought ran into to measure up for a patent?" "What is the benchmark for evaluating whether an innovation is new and non-obvious before it is granted a 20 twelvemonth monopoly to except others from making or using the invention?" While the criteria for obtaining a patent of invention of invention of innovation may look subjective, in fact, the criteria for patentability is fairly nonsubjective and well defined in patent law.

To ran into the litmus diagnostic diagnostic test test of patentability, an thought must fulfill a three-pronged test of novelty, non-obviousness, and utility. Also, the innovation must not have got been in public usage or sale in the United States for more than than one twelvemonth prior to day of the month of filing the patent of invention application. The United States patent of innovation legislative act states that an innovation is deemed obvious, "…if the difference between the topic substance sought to be patented and the anterior fine fine art are such as that the topic substance as a whole would have got been obvious to a individual having ordinary accomplishment in the art to which the topic substance pertains." The "utility" demand is probably the easiest criteria to ran into as virtually any public utility is considered to ran into the "utility" requirement.

These patentability criteria are the footing for determining the "intuition or genius" of the discoverer and the extent of use of public sphere cognition in arriving at an invention. As an illustration see the pharmaceutical sector. A big figure of patents of invention are granted on drugs, chemical compositions and processes, and methods of drug administration. See an discoverer who obtains a patent of invention on the active ingredient of a drug but omitted to claim of import inactive ingredients such as as diluents, solvents, etc. of the drug. In such as a case, the rivals may patent of innovation the discrepancies of the drug and make a lookout fencing around the active ingredient, thereby preventing the original discoverer from obtaining a full-benefit of his/her invention. To fairly justice whether the inactive ingredients were obvious or were they owed to absolute penetration of the competitor, it is necessary to use delineated and unambiguous patentability criteria.

A patent of invention is correspondent to any place for example. The extension of the zone of protection is directly related to the comprehensiveness of the patent's claims. A given patent of invention forestalls others from infringing this zone of protection. At times, this zone of protection may not be sufficiently restrictive in protecting an invention. For example, overly wide patents of invention of invention and secondary patents covering incremental alterations made to an inventive conception may not really advance innovation. Though, the patenting system was introduced with the primary purpose of promoting innovation, it may be uneffective in this end without well-balanced patentability criteria for judging the freshness and non-obviousness of inventions. Hence, it is of import to use well defined patentability criteria in granting patents of invention of invention to guarantee a balance between protecting the involvements of the discoverer and the involvements of the public.

The recent United States Supreme Court opinion in the KSR International v. Teleflex lawsuit is a measure in applying balanced patentability criteria for granting patents. The lawsuit involved the use of electronic detector based adjustable gas pedals. Teleflex accused KSR International of using a gas bicycle engineering claimed in one of Teleflex's patents. KSR counter argued that Teleflex should not have got been granted a patent of invention for that bicycle in the first place, as the combination of an electronic detector and gas bicycle engineering was obvious based on anterior art. The United States Supreme Court reversing the determinations of a less tribunal held that the detector based gas engineering was obvious from the instructions of other patents of invention and invalidated Teleflex's patent.

In his opinion, Justice Antony Jack Kennedy wrote for the Court, "The consequences of ordinary invention are not the topic of sole rights under the patent of invention of invention laws. Were it otherwise, patents of invention of invention might smother rather than advance the advancement of utile arts."

In the visible light of this new ruling, it may look that the barroom for the criterion of non-obviousness, A criteria for patentability have been considerably raised, but in fact a near analysis shows that this determination will only weed out the "weaker" inventive concepts, i.e., inventive conceptions that were very obvious in position of the anterior fine art from being allowed to publish as patents. However, this determination gives the USPTO testers more leeway in deciding whether an inventive conception is non-obvious. As Justice Jack Kennedy said, "Granting patent of invention protection to progresses that would happen in the ordinary course of study without existent invention idiots advancement and may… strip anterior innovations of their value and identity."