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By J.D. Houvener
Patent Attorney and Founder

did you know that before you go file your application for a patent you should consider whether your invention is even eligible for protecting hi I’m JD hoer owner and founder here at bold patents law firm and also patent attorney at the USPTO today we’re going to dig in and talk about patent eligibility in the greater context of patentability for inventions filed at the US PTO in United States patent and trademark office so the first thing I’m going to talk about is your invention and when you know it’s not going to fit into the realm of what’s eligible there’s two major statutory bars and they’re the major reasons why we have heartbreak when we speak with inventors that after they’ve worked on their invention and they finally get to us and they want to file their patent we have to break the news that they violated one of or two of these statutory bars so the first bar is What’s called the on sale bar so the US patent law was put put in place because we want to incentivize inventors to file to share their invention with the world and that way we all become smarter right in an exchange they get a 20-year Monopoly of exclusivity being the only one to make use or sell or import into that country where it’s been given rights so when an inventor sells their invention right it tries to make money before filing an application the patent system wants to in a way penalize or restrict the rights for that inventor down to one year so if you’ve been selling and even offering for sale your invention even if you haven’t even sold it if you’ve offered it to for sale and it’s been more than a year unfortunately your invention is not going to be eligible for filing and so that is a really tough thing do not miss that right if you’re within that year or really close to that one year get a hold of us and we’ll get started on your application today second statut bar another one-year rule as soon as your invention has become published or used in public to where someone in your field could find that information whether it’s online even in a written book or a newspaper periodical that type of thing that’s when it’s been published and so if it’s been more than a year since that publication or public use it’s ineligible as well so I mean these are heartbreak stories like I said if you’ve taken your invention to a trade show talked about it shown it off even if you didn’t sell it if it’s been more than a year unfortunately your invention is not going to be eligible at the USPTO all right so those two statutory bars don’t miss them rewind it make sure it’s clear if you have any questions click below subscribe and email me at jdb if you have any questions at all okay so we talked about eligibility in terms of the overall architecture of of patentability and it’s true section 101 102 and 103 make up the patentability rules the core and this is under 35 USC section 101 102 and 103 so 101 we just talked about um in terms of the on sale bar so let’s delve further into section 101 which is subject matter eligibility so how do we get to this well before we start jumping into the law the statute we need to understand what your invention is for goodness sake so usually before we you know give an opinion on is your subject matter eligible we need to know what your subject matter is seems obvious right when work with an adventure maybe even yourself you’ve got an concept you have an idea maybe even a bold idea and want to know whether that invention is worthy or eligible to meet a patent criteria so we need to pull that invention out of you and yes it’s important for you to speak it but now it’s time to write it down get it into detail so much so that you could actually explain it enough with words alone maybe drawings and it’s okay if they’re you know stick figures or handdrawn and nasty looking um as long as they are able to articulate what your invention does how it works in enough details so that someone like you in your field could build it based on just what you wrote and Drew okay that’s the you know enablement right that’s what we would need to eventually file a patent application for and that’s the information that we want as a patent attorney to know okay here’s what your invention is you’ve got it in a lot of detail is this under Section 101 the type of subject matter that is going to be eligible before we even start talking about is it novel or non obvious which is Section 102 and 103 so back on 101 once we get the invention disclosure the full inven mention like I just talked about with all the descriptions and drawings that’s when we as attorneys can make up our mind as to whether it’s eligible so there’s a lot that’s eligible let’s talk about what is not eligible and we’re going to be looking at your invention to see if it might fit unfortunately into one of these five major buckets so mathematical mathematical Concepts mathematical Concepts this is more like Theory okay uh maybe even equations would fit into this eal MC squares is a math phenomenon a math concept it’s not eligible under USP rules because it’s really describing physics it’s really describing a core natural you know innate fact as opposed to a human intellect Ingenuity input from the human mind all right number two organize human activity if you’re patenting something that happens every day or could happen in the course of a daily interaction with the human body and nature or human to human it’s in general not eligible you’ve got able to prove something Beyond something that is added some additional spice some variety some intellect into that activity can’t merely be organizing human activity the third part of what’s third aspect I should say of what is not eligible is mental processes mental processes alone things that happen in your mind only if there’s no evidence no way to point to a you know a DOT or electron or a moving part a system of organized where you can actually say yes this is what’s happening and verify that activity is moving analysis is happening that’s what we would need in order to get it to be patentable but if it’s purely mental it’s not going to be eligible all right number four laws of nature right this is kind of similar to the first bullet point under mathematical Concepts or if it’s if it’s just a law of nature gravity for goodness sakes you know the way that things how much the mass physically is the state of compositions DNA right laws of nature the way that they interact on a normal day in day out way you may have discovered it and it’s fantastic but that law that nature that fundamental aspect was not human created was not part of an invention it was just a discovery of law nature not eligible under the patent rules bullet point number five is the natural phenomena again this is something that just happens as part of nature as part of the the creation of the earth you know you could call it God or a greater being these are not something that human Zone and it’s not going to be something the USPTO will give rights to an individual on all right so if I didn’t list it in those five your invention is eligible congratulations um so we’re going to want to talk about in later videos about Section 102 novelty which is a fancy word for new your invention must be new in the whole world all time no big deal right and then section 103 even if it’s brand new first of its kind it must also be nonobvious it can’t be an obvious iteration or change from a previously disclosed prior art or publication of its life so hope this was instructive with respect to patent eligibility make sure you go back if you missed it about the on sale bar the publication bar and those five rules of what is not patent eligible under the USPTO I’m JD hoer here with buold patents law firm and hey if you’ve got a question or you want to move forward with your invention to see if what you’ve got is eligible click link below and schedule a free Discovery session today with one of my team members we look forward to helping you and have a great rest of your day go big go bold

About the Author
J.D. Houvener is a Registered USPTO Patent Attorney who has a strong interest in helping entrepreneurs and businesses thrive. J.D. leverages his technical background in engineering and experience in the aerospace industry to provide businesses with a unique perspective on their patent needs. He works with clients who are serious about investing in their intellectual assets and provides counsel on how to capitalize their patents in the market. If you have any questions regarding this article or patents in general, consider contacting J.D. at