In simple terms, a patent grants the right to prevent others using an invention, allowing inventors to recoup their costs and profit from their ingenuity. Patents can be for complex inventions like Cochlear’s Bionic Ear, or something simple like the ball point pen. Essentially, anything can be patented if the requirements to qualify for a patent are satisfied.

Is the subject matter patentable?

Most products or processes will be patentable subject matter if they go beyond a mere discovery or idea. The invention must be of economic significance, with the end product offering an advantage. However, certain things (including fine arts, naturally-occurring genetic information and business methods, amongst others) are excluded from patentability, regardless of their economic significance. As a specific example, it is not possible to patent a human being.

Is it useful?

Your invention must also be useful, meaning that it must work as intended.

Is it novel?

Novelty means that the invention must be ‘new,’ as assessed against the prior art base, and not previously disclosed to the public before the date the application is filed. There are exceptions to disclosure, however, such as to a person subject to an obligation of confidence, or limited public use of the invention for the purposes of reasonable trial and experimentation.

In some countries, a grace period exists in which an invention can be publicly disclosed prior to filing a patent application without jeopardising the rights of the inventor. However, in other countries, any public disclosure of an invention before the filing date of a patent application will be novelty-destroying.

Does it involve an inventive step or an innovative step?

For a standard patent, the invention must involve an inventive step, while an innovation patent must have an innovative step. A later article will go into detail regarding the differences between these types, but to summarise them; the innovative step test sets a lower threshold of “inventiveness”, making innovation patents suitable for inventions that may not meet the higher threshold inventive step test.

There is a presumption that an invention involves an inventive step unless the invention would have been obvious to a person skilled in the art (i.e. someone familiar with the technology of the invention), given the common body of knowledge.

An innovative step is satisfied unless a person skilled in that art would consider the invention only varied from an already existing invention in ways that make no substantial contribution to its working.