Intellectual Property


There are three types of patents:

  1. Utility Patent
    • Utility patents are the most common patent.
    • Utility patents last for 20 years from the date of filing.
  2. Design Patent
    • E.g., the Coca-Cola bottle
    • Design patents last for 15 years from the date of issue.
  3. Plant Patent

To be patentable, an invention must be:

  1. Useful

    Patents must be useful. 35 U.S.C. § 101.

    Basically everything ever is "useful". If nothing else, claim it is a novelty item. About the only thing that runs afoul of this requirement is perpetual motion machines.

  2. Novel

    Patents must be novel; they cannot do the exact same thing as an existing patent. 35 U.S.C. § 102.

    Novelty rejections are very rare unless your just wrote your claim too broadly and included already-existing patents.

    To be novel, a patent cannot the exact same as prior art.

    Prior Art

    Prior art is the technology already in the field at the time the patent was filed.

    It can have been publicly disclosed anywhere in the world. It does not have to be in English. It just have to be that people in the field should have been aware of it.

    It also has to have been filed before you publicly disclosed it or within one year of you publicly disclosing it.

    • In almost every other country, there is no one-year grace period.

    In a weird scenario, if you are not ready to patent something but need to and do not want to file a provisional patent application, you can publicly disclose a patent to ensure that no one else can patent it while giving yourself one year to patent it yourself in the US.

  3. Non-Obvious

    Patents must not be obvious. 35 U.S.C. § 103.


    Obviousness is determined by whether the claimed invention would have been obvious "to a person having ordinary skill in the art to which the claimed invention pertains." 35 U.S.C. § 103.

    It also assumes that he knew of the problem solved.

    Obviousness has a four-step test to determine it:

    1. The scope and content of the prior art are to be determined.
    2. Differences between the prior art and the claims at issue are to be ascertained.
    3. And the level of ordinary skill in the pertinent art is to be resolved.
    4. Such secondary consideration as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented.
      • I.e., if previous attempts failed, unsolved needs took forever, etc. then the solution apparently was not obvious.

    Graham v. John Deere Co.

    If the solution to a problem would be obvious if the problem were to be considered, the solution is usually going to be considered obvious. The non-obviousness of the problem itself does not provide protection.

    Obviousness is the most-often contested element.

  4. Patentable Subject Matter

    Congress specifically listed four types of things as patentable:

    1. Processes
    2. Machines
    3. Manufactures
    4. Compositions of matter

    35 U.S.C. § 101.

    Discoveries of natural phenomena, products or laws of nature, and abstract ideas are not patentable.


    Processes, including business methods are patentable, but they cannot just be abstract ideas.

    If a patent claim is over an excluded subject matter, it must have an "inventive concept" that transforms the idea into a patent-eligible invention.

    You cannot patent food recipes, even though it would seem to fit the requirements. They would have to be trade secrets instead.

  5. Specific

    Patents must be described specifically enough so that "any person skilled in the art to which it pertains" could recreate and use it. 35 U.S.C. § 112.

In the United States, patents must be filed within one year of publicly disclosing the invention or making sale efforts therefor.

  • Most foreign countries give no grace period. Patents must be filed before it is ever publicly disclosed.

Patents contain:

  1. Abstract
  2. Specifications, which describe the invention
  3. Drawings
  4. Claims