Patent Attorney and Founder
Welcome to the Bold Inventor Show. I’m JD Houvener, here with my trusty co-host Matt Kulseth.
Matt: Hello, hello, hello!
JD: I want to talk about the four pillars of patentability as one of our kickoff topics. Before we dive in, I want to drop a quick link to our website where you can find a blog post about the four pillars. I originally wrote this back in 2022 and recently refreshed it.
JD: So, what do you need to get a patent? It comes down to four things on the utility side.
JD: The first pillar is novelty. Now, we’re not talking about novelty gifts here. Novelty means the invention must be brand new. To get a patent, you have to be the first to file it. You may not even be the first to invent it, but it’s a race to file in the US, which adopted this system about 10 years ago. If something has been published or known by those in the field at any time in the past, it’s not considered new. Patent examiners often cite really old publications. I recall an early application where the examiner cited an 1890s washing machine to reject a claim. The first pillar is all about being new in the world.
JD: The second pillar is non-obviousness. This means that even if no one has ever done it before, if it would have been obvious to try, it doesn’t qualify. Examiners will combine pieces of prior art to argue that it would have been obvious to put them together. For example, adding a new color, flavor, or chemical to something existing might be considered obvious. You can fight the examiner’s arguments or amend your claims, but non-obviousness is a crucial hurdle.
JD: The third pillar is utility, but this only applies to utility patents. Utility means the invention must have some benefit. It’s a low bar, but you need to demonstrate through your specification or drawings that there’s a unique, functional benefit. One humorous example is a patent granted for entertaining a cat with a laser light. Even perpetual motion machines, which fail to prove utility, must show some practical benefit.
JD: The fourth pillar is eligible. This means the invention must fit into one of the four main types of patents: machines, compositions of matter, processes or methods, and assemblies. Almost everything fits into these categories. There are also plant patents, but we’re focusing on utility patents today. Eligible means the invention must follow the rules set by the Supreme Court, such as in the Alice vs. CLS Bank case. Natural phenomena, laws of nature, and basic human activities alone are not eligible for patents.
It’s worth mentioning that design patents only require three pillars: novelty, non-obviousness, and eligibility. They don’t need to demonstrate utility, as they are focused on the unique shape or design.
Those are the four pillars of patentability. If you meet all four, you can secure a patent. Thank you for tuning in to the Bold Inventor Show!