Patentability is determined by a combination of two expert evaluations that address all four requirements: patent eligible subject matter, usefulness, novelty, and non-obviousness.
Note: There are statutory barriers to patentability, as well as conditions under which patentability is granted.
First Evaluation: Determine Whether the Subject Matter is Patentable
The first step is to determine whether an idea or invention is patentable subject matter. A patent can be obtained for a process, machine, manufacture, or matter composition. In the United States, there are four types of patentable subject matter:
- To begin with, a process defines actions. A process is generally defined as an act, step, or series of acts or steps.
- Second, a machine is a physical object. A machine is generally defined as a device or apparatus composed of parts, devices, and/or combinations of parts and/or devices.
- Third, a manufacture is a physical item. A manufacture is generally defined as the creation of a new form, quality, property, or combination through man-made or artificial means.
- Finally, a matter composition is a combination of two or more materials or composites.
Second Evaluation: Useful, Novel, and Non-Obvious
The second evaluation is a 3-part determination. First, consider whether it is useful (35 U.S.C. 101). Any type of non-trash or non-criminal usage is permitted. Second, whether or not it is unique (35 U.S.C. 102). It cannot be in the prior art or be in competition with another idea or invention. Third, if it would be obvious to try for a person skilled in the art of making the invention (35 U.S.C. 103). If your innovation meets these conditions, then you can receive a prior art search and a patentability search report using our AI-based patentability tools.
An Expert Should Determine Patentability
Do you want to find out if your invention or concept is patentable? A patentability expert in the United States is a USPTO Registered Patent Practitioner who works on patent applications. At XLSCOUT, we have successfully prosecuted numerous patent applications and can assist you in determining the same.
An invention must meet three criteria in order to be patentable. All of the research, analysis, studies, and reports can be conducted using our AI-based patentability tools.
We guarantee that we will keep your invention confidential. XLSCOUT does not subcontract any of its patent research, studies, or reports. We believe that the supporting work must be completed before the application is drafted. Get in touch with us to find out if your invention is patentable.
What is Patentable Subject Matter? -United States Patent and Trademark Office
For Patent Applications in the United States
The United States determines patentability using four criteria. Under US law, the four criteria are as follows: 1. patent eligible subject matter, 2. usefulness, 3. novelty, and 4. non-obviousness. The criteria for international (PCT) patent applications vary slightly and will be discussed further below. The patentability of an invention is determined in two stages. The first stage considers the first criterion: patentable subject matter. The second stage involves determining the remaining criteria, which are usefulness, novelty, and non-obviousness.
First Stage: Patent Eligible
The first step in determining patentability is determining whether or not an invention or idea is patent eligible. Patent Eligible Subject Matter (more information at USPTO) means that an invention must be a process, machine, manufacture, or matter composition. The exceptions of natural laws, physical phenomena, or abstract ideas, according to the courts, do not apply to the invention. For example, an invention that defies natural laws cannot be patented.
Note: The criteria outlined here are based on US law. The criteria for international (PCT) patent applications, on the other hand, differ.
Second Stage: Usefulness, Novelty, and Non-Obviousness
The second stage of patentability evaluation then examines the remaining three criteria: usefulness, novelty, and non-obviousness. First and foremost, is the invention useful? The invention is likely to meet the usefulness criteria if it has any non-criminal use and is more than simply trash.
Second, is the invention unique? To put it another way, the invention must be novel. Prior art governs novelty (35 USC 102). This means it cannot exist in any pertinent information available to the public prior to the date of invention in any form.
Finally, is the invention novel? Could the invention be attempted by a person of ordinary skill in the art? For example, if the invention was a new toy, someone who knows how to make toys would know how to make and use the invention based on prior art. Prior art, like novelty, determines non-obviousness (35 U.S.C. 103). All of these criteria must be met by patentable inventions.
In Case of International Patent Applications
As previously stated, the patentability criteria for International Patent Cooperation Treaty (PCT) applications vary. Under international law, the three criteria for patentability are novelty, inventive step, and industrial applicability. The PCT criteria for novelty, non-obviousness, and utility are comparable to the US criteria.
First Criterion
The first patentability criterion for a PCT patent application is whether the invention or idea is novel. Both US law and PCT applications evaluate novelty in the same way. Similarly, if the invention is known in the prior art, it is not novel. Prior art also includes any information available to the general public in any form prior to the date of invention that may be pertinent to claims of novelty and non-obviousness. Only novel inventions can be patented.
Note: The mentioned criteria are based on the Patent Cooperation Treaty. Patent applications in the United States differ.
Second Criterion
The second patentability criterion for a PCT application is a determination of whether a particular invention or idea has an inventive step. The PCT assesses inventive step in the same way that the US assesses non-obviousness: whether the invention would be obvious to a person of ordinary skill in the art to try.For example, if the invention was a new toy, someone who knows how to make toys would know how to make and use the invention based on prior art.
Note: Like non-obviousness, prior art determines inventive step. An invention is not patentable if a combination of prior art would make the invention obvious to a PHOSITA.
Third Criterion
Industrial Applicability: The determination of whether an invention or idea has industrial applicability is the third patentability criteria for a PCT patent application. The industrial applicability of a PCT patent application is evaluated in the same way that the usefulness criteria under US law are. The invention is likely to meet the usefulness criteria if it has any non-criminal use and is more than simply trash. Only useful inventions can be patented.
A prior art search is carried out by a professional to identify potential prior art and determine patentability. The prior art is used to assess an invention’s eligibility against these criteria. In other words, a patentability expert conducts prior art patentability research.
What is Prior Art?
Prior art is defined as anything that is available in print or electronically in any country and in any language. Prior art is defined as any information available to the general public in any form prior to the date of invention that could be pertinent to claims of novelty (35 U.S.C. 102) and non-obviousness (35 U.S.C. 103). Prior art, in other words, is any disclosure pertinent to claims of uniqueness and obviousness. Any similar disclosure to a patent claim, in particular, may inhibit the claim from being allowed.
What Is the Meaning of Art?
The art of an invention belongs to the technological area to which the invention relates or is most closely connected. The invention determines the state of the art. The technological area(s) into which an invention is classified for examination and indexing frequently have similar sounding names. For example, if the classification of an invention included words such as toys and games, the art would be “making toys and games.”
The term “art” is important because the description in a patent application must allow a person of ordinary skill in the art to make and use the invention. As an example, if the invention is a new toy, a person with ordinary skill in the art of making toys must be able to make and use the invention according to the description and figures submitted with the patent application for the new toy. Our AI-based patentability tools can assist you in making this decision. Get in touch with us for a professional patentability report on your invention or idea.
What Exactly Does “Patented” Mean?
When a product or process is patentable, it has an issued patent and is legally protected. The issuance of a patent has given the product or process legal protection. A patent is the legal right to control the manufacture, use, and sale of an invention for the duration of the patent.
Patented means that the patent office reviewed the patent application and determined that some claim(s) were allowable. Allowed claims are sent a notice of allowance along with a proposal to pay an issue fee and receive a patent. After the issue fee is paid, the patent is published and issued. After that, the patent is granted for the allowed claim(s) described in the issued patent (legally protected). For the timespan of the patent in the region or country where it is issued, patent protection provides legal rights to regulate making, using, and selling.
Our Methodology
XLSCOUT put the use of reinforcement learning to its AI-based Novelty Checker tool to get quality prior art search reports in just 10 minutes. The Novelty Checker uses reinforcement learning to filter the noise from the prior art by pulling up the relevant results on top of the list. To be precise, it assists in conducting a novelty search to help you ensure that your innovation is unique. By selecting a few relevant and non-relevant results, users can apply reinforcement learning to the result set. The system takes the user’s feedback and then learns from it. Then it re-ranks the results by bringing the quality results to the top and sending the noise to the bottom.
Without reinforcement learning, users go through hundreds of results manually. By applying reinforcement learning, users can skip going through the non-relevant results. Users can apply reinforcement multiple times to a result set according to their different requirements/ criteria. They can then view the Top-10 or Top-20 results for each criterion to perform an analysis for idea validation.
Users can quickly generate an automated novelty and patentability search report by selecting these Top-10 or 20 results. Search reports from Novelty Checker include a good list of results. In addition, key features of the invention are mapped with relevant text to facilitate quick decision making.
