If you have an original idea that you’re excited to patent and bring to market, it’s important to know what you have ahead of you.
The process for obtaining a patent is extensive and often grueling, so it’s critical that you are prepared for that journey. It’s also vital that you come with the knowledge of up-to-date requirements so that you don’t make an easily avoidable mistake.
Of course, one of the best ways to make sure you navigate the process as effectively as possible is to consult a patent attorney who will be with you every step of the way. That said, you should still have the basics down yourself to give yourself an advantage.
Without further ado, here are the 2021 patent requirements you should keep in mind when planning to file a patent!
What Changed?
Generally, the base guidelines and principles of patent applications and acquisitions have remained consistent for decades. That said, there are gradual changes that occur in attempts to perfect the structure and keep everything up-to-date with modern needs.
2020 is an example of that. In January, the USPTO published new guidelines for patent subject matter eligibility. This is intended to direct inventors, attorneys, and courts alike when it comes to patentability assessments.
These new guidelines give important clarity to the original standards on what makes an invention patent-eligible. The main update is that it now employs a new test that consists of a two-prong inquiry to determine that eligibility. We will go more in-depth on this shortly.
J.D. Houvener, a patent attorney serving Houston, always advises that his clients stay up to date on patent requirement updates like this:
“I constantly get asked whether something is ‘patentable’ since that’s really the first step in the journey. The main points that have to be hit are that it must be useful, novel, and non-obvious, but even some inventions that seem like they could qualify to get ruled ‘abstract’ and invalid. I know that inventors and entrepreneurs already have enough balls in the air to juggle, but understanding the latest in patent updates can save a lot of heartache in this area.”
To make sure you understand how to patent an idea with the new requirements in mind, you have to understand the new patent test that was introduced.
New Patent Test
As mentioned, the new patent test will consist of a two-pronged method to more effectively determine the patentability of an invention.
The first prong examines whether the claim is directed to a judicial exception under the USPTO’s Subject Matter Eligibility Guidance. Judicial exception for abstract ideas can be directed towards:
- Mathematical concepts
- Mental processes
- Laws of nature
- Methods for organizing activities
- Natural phenomena
If your invention isn’t directed to these areas, it is eligible then and there. If it’s still questionable or on the fence, you will move onto the second prong in the analysis.
This second prong is designed to determine whether the claim has elements that successfully deem it sufficient for the judicial exception in practical application. Even if the practical application applies a “meaningful limit” to the exception, it may still be sufficient.
Furthermore, a lack of practical application isn’t necessarily the end of the road either. If there is an “inventive concept” or proof that the elements can amount to more than the exception itself, there is still hope.
Essentially, if an inventive concept can be demonstrated than the claim may, in fact, be eligible for a patent, even if it required more analysis through the second prong of the method.
Why it Matters
As mentioned, understanding this newly introduced method is critical when prepping for a patent application process, even if you are on the inventing/entrepreneurial side of things rather than a legal professional.
The introduction of this two-pronged method itself is important as it aims to clarify eligibility requirements that can further push and facilitate innovation. It makes the process both easier at the beginning of the journey (therefore saving time, money, and entry barriers) and also gives due thought to less obvious qualifying claims.
That said, every new policy receives criticism. Many believe that the requirements are still vague and difficult to define, especially with five broad categories that patents would need to fit into. This could potentially lower the number of approved patents, but since it is still a recently implemented method, it’s impossible to tell whether these criticisms will hold true.
In Summary
IP Law covers a vast domain of topics and critical details, even when you just narrow it down to patents. Of course, this is why hiring a patent attorney is always a good idea (you shouldn’t feel expected to personally learn every detail and specification), but you should still keep up with the latest core points.
When it comes to patents, the 2020 Revised Patent Subject Matter Eligibility Guidance is a great place to start for anyone just starting their journey. Since it is already in effect, you should even consider it mandatory knowledge rather than a recommendation!
Ultimately, all that matters is you feel comfortable and confident in your ability to protect your intellectual property and original ideas!