This post is part of a series of posts titled “what to do before meeting your IP advisor”.
We all know this scene: you have a brilliant idea for an invention and you talk about it with a close friend or a family member. They tell you it is obvious or trivial and therefore not patentable. Well, they are most likely wrong. Most people tend to assume they know what is patentable and what is not. Most of the time, they don’t have the slightest clue. Even experienced inventors can make this mistake, by wrongly assuming that their inventions embody “little progress” or by confusing a general idea and a specific way of performing the general idea.
Often, a “little” progress is all it takes for inventiveness. Also, remember that sometimes your way of framing a problem may itself be non-trivial and provide inventiveness.
In most countries in the world, a patentable invention must be new, useful and inventive (or non-obvious). If you followed tip #2 and made yourself familiar with the market in hand, you should have a feeling about novelty. However, we suggest you should not try to determine whether your invention is inventive.
Inventiveness is a legal test, not a technical one. It aims to determine if the invention was obvious to a hypothetical “person of ordinary skill in the art”, on the basis of information available prior to the date of your patent application. Analyzing and evaluating the inventive step of your invention must be carried out by patent professionals. They may also slightly change the scope of the invention in order to enhance inventiveness.
You can help with this analysis by asking yourself these two questions (a) Was there a long felt need for your solution in the art? This means that people were aware of the problem, and no solution was found. (b) Will you be able to show, a few years down the road, that the product (which does not exist yet…) had commercial success due to what is said to be the invention? You can also help by answering the following question: “why didn’t others find my solution?”
Many perfectly valid inventions are “killed” at a very early stage of development because the inventors are under the misconception that their invention lacks inventive step. So, if you believe your invention is novel and that it potentially has value, that is enough. Your IP advisor will take of the rest.