What is a patent?
A patent is a set of exclusive (monopoly) rights granted for a finite term (normally 20 years) by the government for an invention. The invention could be a device, substance, method or process and must be new, inventive, and useful.
A patent provides exclusivity in that it gives the patent owner the right to prevent others from commercially exploiting the patented invention. Patents are territorial, so if you require protection in a particular country or region, you must file a patent application in that country or region.
The most common grounds for refusing a patent application are:
- Lack of novelty;
- Lack of inventive step.
To qualify for a patent an invention defined in a claim of a patent must be novel (new) in light of prior art information available prior to the priority date of the claim. Prior art information usually means information made publicly available in a document or through doing an act anywhere in the world. The prior art base also generally includes the applicant’s own documents and acts. The priority date is normally the filing date of the first patent application describing the claimed subject matter.
Novelty is established relative to the prior art when a claim includes at least one feature that is not disclosed in the prior art base.
Inventive Step (non-obvious)
To qualify for a patent, the invention defined in a claim must not be obvious to a person skilled in the relevant technology area at the priority date of the claim. Inventive Step is essentially a test that excludes inventions that only differ from the prior art in terms of features that would have been considered obvious to those skilled in the art when faced with the problem addressed by the invention at the priority date.
It is important not to make considerations of inventive step with the benefit of hindsight, as many inventions are obvious, based on a hindsight analysis.
Other Grounds for Rejection
Amongst other requirements, patentable inventions also need to be industrially applicable. This means they must be able to be made or used in some kind of industry or commercial endeavour.
Many countries also exclude certain things from patent protection e.g. (naturally occurring) plants and animals, scientific theories or formula. These exclusions are highly subjective and vary from country to country – unless you have specific advice to the contrary you should assume that your invention will not be excluded from being patentable.