It’s Never Been Done Before: Novelty
This is the second in a series of posts on patentability – read the first post – That’s A Great Idea, You Should Patent It (Or Not)
Please note: I’m not a patent attorney, although I do hang around many of them and they are all very nice people – so if you have more detailed questions regarding an actual patent or patentable idea, please consult an attorney. I just like inventing stuff.
Novelty is typically the first criteria of patentability in our book. Simply put, if you can answer the following questions:
- Has this ever been done before?
- Has this ever been thought of (and written down, or described publicly) before?
- Has this ever been patented before?
All with a firm “No”, then you may have a patentable idea on your hands.
Here are some examples of ideas which made it through the novelty filter:
- The Post It Note – otherwise known as “Releaseable adhesive pads“
- Twitter – otherwise known as “Device independent message distribution platform“
- One of mine, “Automated Friend Finder“, a system to help people find friends on social networks.
In my opinion, there are a few ways in which ideas are novel. Many people believe that there really is nothing new under the sun, and just like all stories are a variation of Joseph Campbell’s Hero’s Journey (aka the monomyth), and that everything is built on something that has come before. If this is true, then all ideas, no matter how novel and new, are simply a combination of ideas which came before, put together in new ways. I’d agree that there are many ideas like that.
Take the iPod, an example I’ve used before. The iPod is a combination of a number of ideas, which culminated into a single breakthrough product. There are no less than 7 patents on the core features and functionality of the iPod, as can be seen here, but it was Steve Jobs who first put it together in the way he did, and the result is history. Who knew that taking an MP3 player, combining it with a portable hard drive, and wrapping it in a novel user interface would be such a hit?
In that case, look at your idea. Is it a combination of a number of ideas, put together in new, novel ways that has never been seen before? If you can answer that question with a yes, its time to take the idea to your patent attorney. They will do what’s known as a “prior art search” to determine if the idea indeed is novel. Via Wikipedia:
To assess the novelty of an invention, a search through what is called the ‘prior art’ is usually performed, the term “art” referring to the relevant technical field. A prior art search is generally performed with a view to proving that the invention is “not new” or old. No search can possibly cover every single publication or use on earth, and therefore cannot prove that an invention is “new”. A prior art search may for instance be performed using a keyword search of large patent databases, scientific papers and publications, and on any web search engine. However, it is impossible to guarantee the novelty of an invention, even once a patent has been granted, since some obscure little known publication may have disclosed the claimed invention.
Don’t try this at home, kids. Not only are patent attorney’s way more skilled than you at finding other ideas which are like yours, if you DO this, it may invalidate your own idea. Simply seeing other prior art before you take the idea to your patent attorney could “infect” your idea with elements of the prior art, and therefore when you do finally take it to them, not only will you have to disclose that you saw the prior art, your idea may infringe on another and it will be invalidated. So if you can help it, don’t look at prior art unless its your firms policy.
Typically, I prefer that inventors do not do prior art searches on their own, however it depends on the policies of your company towards patents. If your firm wants you to perform your own prior art searches, there are some excellent recommendations at the following sites:
- 5 Crucial Things to Understand About Searching for Prior Art
- Should I Do A Prior Art Search?
- I Can’t Find Prior Art for My Invention
- Five Easy Prior Art Search Tips You Need to Keep In Mind
- Patent Prior Art Search Guide
If you do come up with something like your idea, there is still hope. You will still have to disclose that you saw the previously filed or patented idea, but if you can give your idea a brand new twist, by adding something else new and different, it may pass the novelty filter after all. But that’s not all, there are three more filters to go.
Next up: Why Didn’t I Think Of That, or Non-Obviousness.
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