PATENTABILITY REQUIREMENTS

In order for an invention to be patentable, the invention must be both "novel" under 35 U.S.C. § 102 and "nonobvious" under 35 U.S.C. § 103.

An invention is generally deemed to be novel when it has not been identically disclosed in any prior patent or publication, or has not been on sale or in public use for more than one year. Once it is determined that an invention is novel, the differences between the invention and those previously developed must be found not to be obvious to a person having ordinary skill in the art.

The manner in which novelty is most often assessed is by comparing the invention, as claimed by the inventor, with the prior art; that is, the pre-existing body of knowledge. If the claimed invention is identical to that shown in the prior art, the invention lacks novelty and is not patentable. In making this determination, the examiner is not permitted to dissect the prior art and use components from several sources; a single prior art reference must disclose the entire invention in order to be rendered unpatentable.

Even though an invention is novel, it must not have been obvious to a person skilled in the relevant art at the time it is made. When examining an application for patentability, the examiner can combine the teachings of several patents to conclude that an applicant's invention is obvious in light of the prior art. Generally speaking, an invention is non-obvious if analogous prior art does not suggest or teach the claimed invention and does not provide motivation for a person having ordinary skill in the art to modify the prior art to arrive at the claimed invention.

Also, in order to qualify for patent protection in the U.S., you must file your patent application no later than one-year after you have sold, offered to sell, or publicly disclosed your invention. In other words, the U.S. gives you a one-year grace period. However, taking advantage of this grace period will prevent you from being able to obtain patents in most other countries. Therefore, it is best to file a U.S. patent application before you disclose your invention. Once you are "patent pending" in the U.S., you can disclosure your invention or put your product on the market. Then, if you then file your foreign patent applications within one-year after you file your U.S. patent application, most countries will use your U.S. filing date for the foreign application.