Patentability

Patentability – What can be patented?

There are three main requirements for something to be patentable. These are ‘novelty’ and ‘inventiveness’ and that the invention is not excluded subject matter.

1. Novelty

Novelty means that the invention must be new in the sense that the exact thing has not been non-confidentially disclosed before. This is an objective test; something is either novel or it is not. Care should be taken in assessing novelty as whether something has been non-confidentially disclosed is not always straightforward.

Furthermore, some countries have ‘grace periods’ from the first disclosure of an invention, within which time an inventor has the opportunity to file an application for valid patent protection. For example, the US has a 12 month grace period within which to file an application for valid patent protection.

2. Inventive Step

‘Inventive step’, or ‘inventiveness’ means that the invention as defined is not obvious to someone skilled in the field of the invention. The test of inventiveness is, to a degree, subjective, and if something is new then it can often be argued to be inventive.

3. Excluded Subject Matter – Or Not?

The invention must also not be excluded from being patentable. There are various exclusions to patentability, but these are often misunderstood. Furthermore, the exclusions vary from country to country.

For example, in the UK it is not possible to patent a new card game that uses a standard deck of playing cards. Such a game could be patentable in the US.

Therefore, if you are concerned that your idea might be excluded from patentability, don’t take that for granted –seek professional advice.

We offer a free consultation, during which we can give you an indication of whether or not your idea is likely to be seen as excluded subject matter. Please contact us for a free consultation.