Ashley Johnson

Ashley Johnson

Patent & Trademark Attorney


What Is A Patent & How Can One Help My Business


What Qualifies For Patent Protection?

In today’s ever-changing world, we witness countless inventions, creations, and discoveries on a daily basis. These innovations appear throughout a variety of industries and technological fields, which leads to a serious downside – third parties developing similar concepts or attempting to use an invention for themselves. Because of this constant risk, protecting your intellectual property is crucial.

What is a Patent?

When one uses the term “patent,” they are referring to the right of the patent owner to prohibit the third party from making, using, selling, distributing, or importing the invention for as long as the patent is valid. Whether it be a utility patent, design patent, or plant patent, being informed on the latest trends in patent law will help protect your intellectual property.

Utility patents, which are the most popular of the three categories, provide protection over functional new inventions or improvements on machines, processes, products, or compositions of matter. These include software, new manufacturing techniques, and improved devices. Utility patents can provide a wide umbrella of protection over both new innovations and improvements to older creations.

Design patents protect how an object looks – i.e., the visual characteristics of the object. For example, a unique jewellery design, the shape of a bottle, or a distinctive chair shape can all be protected with a design patent. While utility patents have a term of 20 years, the life of a design patent is 14 years.

Plant patents protect new and distinct varieties of asexually reproduced plants. To be patentable, the plant must have been asexually propagated – i.e., reproduced by means other than from seeds, such as root cuttings, budding, or grafting. Plant patents create an incentive for innovation by plant breeders and scientists in the horticulture industry.

What is Required to Determine Patentability?

For an invention to be legally protected by a patent, the subject matter must be patentable in the view of the U.S. Patent and Trademark Office. For an invention to be deemed patentable subject matter, it must meet 4 hurdles:

  1. The invention must meet Congress’ definition of patentable

Congress has set out what qualifies as patentable subject matter. Specifically, the invention must be the machine, manufacture, process, or composition of matter. So what is excluded? Laws of nature (e.g., gravity), abstract ideas (mathematical formulas), and natural phenomena (products of nature).

  1. The invention must be new

The novelty requirement means that the invention cannot already exist. Novelty is determined by a search of the prior inventions (called the “prior art”). Typically the search covers patent databases, scientific papers and publications, and web search engines.

  1. The subject matter must be useful

An invention is useful if it provides an identifiable benefit and is capable of use. The usefulness requirement, therefore, prevents the patenting of hypothetical devices, such as a perpetual motion machine.

  1. The invention be non-obvious

Non-obviousness ensures that patents are granted from normal product design and development. The threshold question is, therefore – “is this invention an obvious next step?” An apparent combination of two inventions would therefore likely lack the non-obviousness test. Thus, patentable inventions should possess an inventive leap over prior inventions.

Next steps in filing a Patent Application

If you need help determining whether your invention qualifies as patentable subject matter, an experienced patent attorney can help. At Dogwood Patent and Trademark Law, we can provide insight to help you determine your best course of action. If you have questions or would like a free consultation please contact our office in Raleigh at (919) 576 7612 or in Wilmington at (910) 612-7027

Contact Us For Consultation

Intellectual property is often our clients’ most valuable asset and raises the most complex issues. Dogwood Law places emphasis on cost-effective counselling of clients. Whether you are just starting or have years of experience we can meet with you for a free consultation.

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