What do you need to get a patent through the USPTO?

There is a lot of confusion as to what you actually need to push a patent through the hallowed halls of the United States Patent and Trademark Office (USPTO). For those of you who do not know, it is the USPTO that decides whether or not you will be given a patent.

The three main criteria are the following:

1.) Utility

2.) New

3.) Non-Obviousness (Duh!)

The first requirement Utility is that your invention have some sort of use or function. This is almost never a problem.

The second requirement basically means that your invention is the first of its kind. Keep in mind that by first of kind, it does not mean that it is the first patent application. By first of kind, we are referring to anything. I once spoke with a USPTO Patent Examiner who used the Holy Bible, King James Version as prior art against a new method of making bricks. When the Examiner read the patent application, he thought that the method rang a bell. So he consulted with his Bible, and sure enough, there it was in chapter and verse. So the Examiner literally used the Bible, a 2,000 year old document as prior art to reject a patent application. So, your invention has to withstand anything under the sun made by man.

The third requirement is the Non-Obviousness requirement. I call this the "DUH!" requirement. With this requirement, your invention can't be too obvious and trivial. Let's say for instance, that you invented a new pen with a unique color burgundy. And currently, there are no pens in the world (for argument's sake) that have burgundy-colored ink. Well, according to the USPTO, this would be a "DUH!" invention. In other words, you don't have to be a rocket scientist to figure out that you can go ahead and mix some ink color to come up with another shade of ink to sell it.

By far, the toughest hurdle to pass is the Non-Obvious requirement. It sounds tough and daunting. And sometimes it is. And sometimes it is not. Technically, the test for non-obviousness is whether a person who is an expert in that industry or subject would consider that to be "DUH!" It would also depend on the industry itself. For instance, in the industry of gyroscopes, the level of skill of an expert in that field would be awful high. By way of contrast, the level of skill of a hamburger flipper would not be so high.

Other factors that have some weight in what is "Duh" are the following:

(1) the invention's commercial success,

(2) long felt but unresolved needs,

(3) the failure of others,

(4) skepticism by experts,

(5) praise by others,

(6) teaching away by others,

(7) recognition of a problem,

(8) copying of the invention by competitors