Patent Protection (A Simplified Explanation)

There are three simple tests for obtaining patent protection. Your invention must be 1) new, 2) useful and 3) not obvious. It is this “obviousness” test that is the battle ground of patent law. The accompanying video is intended to provide a simplified explanation to assist persons considering patent protection.

Here is a transcript of the video

There are three tests for obtaining a patent.  They are best explained by way of example. So let’s assume for the moment you’ve got a garbage can, and that garbage can telescope upwardly and swivels back and forth.  The first test you have to have is – Is that garbage can new?  And that’s pretty easy to determine.  What one does is conduct a search to see if you can find a garbage can that telescopes up and swivels, and if you can’t, you pass the first test.  You’re new.  The second test is that it has to be something’s that useful so you have to explain to the Patent Office why having a garbage can that telescopes up and swivels is useful.  If you can do that, you’ve passed the second test.  You’ve got something that’s useful.  The third test is that your invention must not be obvious.  The danger there is that an Examiner can conduct a search and find a garbage can that telescopes up, and another garbage can by somebody else that swivels back and forth, and suggests that it is obvious to combine the two garbage cans into one. If, in fact, those two garbage cans existed and could be combined into one, you’ve got a problem.  The Examiner is going to clearly find that your invention is “obvious”.  Your patent lawyer will do searches to try and make sure that doesn’t happen.    The big danger in patent law is that sometimes the Examiner goes and searches for other things that swivel back and forth, and other things that telescope.  They’re not garbage cans at all, and he then comes back and suggests that your invention is obvious because of these other devices.  That’s the difficult part of patent law and it is something that even the patent lawyers sometimes have difficulty searching because the Examiner can find these swiveling and telescoping examples from something that’s completely different.  It is very difficult to anticipate.  That’s patent law simplified.