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114 | Patent it YOURSELF Fig. 5C—The Patentability Flowchart
ChaPter 5 | Is It PATENTABLE? | 115 on a pastry mold to show the two elements of the invention. It wouldn’t be proper to “combine” these disparate references since they’re from unconnected fields and thus it wouldn’t be obvious to use them together against this invention. An example of where the law would consider it obvious to combine several references is the case where, as discussed, you make a bicycle out of the lightweight carbonfiber alloy and, as a result, your bicycle is lighter than ever before. Is your invention “unobvious”? The answer is “No,” because the prior art implicitly suggests the combination by mentioning the problem of the need for lighter bikes and the lightness of the new alloy. Moreover, the result achieved by the combination would be expected from a review of existing bicycles and the new lightweight alloy. In other words, if a skilled bicycle engineer were to be shown the new, lightweight alloy, it would obviously occur to the engineer to make a bicycle out of it since bicycle engineers are always seeking to make lighter bicycles. In KSR v. Teleflex (2007), the U.S. Supreme Court made it easier for the PTO or the courts to reject claims or hold patents invalid if those patents are based on a combination of references. Prior to this, the cases held that an invention should not be held obvious over several prior-art references unless there is a suggestion, motivation, or teaching that the references can or should be combined. This case held that there must be some apparent reason in the prior art to justify combining the references. For example, the existence of a problem can make it obvious to try various solutions. The prior art doesn’t have to be directed to the precise problem, so long as the references still perform their same functions. If you argue that the combination was not suggested by the prior art, state (if applicable) that the problem solved by your invention is different and the references perform new functions in your combination and the result you achieve was not predictable. Factor 15. Impossible to combine This is the situation where prior-art references show the separate elements of the inventive combination, but in a way that makes it seem they would be physically impossible to combine. Stated differently, if you can find a way to do what appears to be physically impossible, then you can get a patent. For example, suppose you’ve invented the magnetic pistol release. The prior art shows a huge magnetic cannon firing release attached to a personnel shield. Since the step from a cannon to a small handgun is a large one, physical incompatibility might get you a patent—that is, it would be physically impossible to use a huge cannon shield magnet on a small and very differently shaped trigger finger. Note, however, that sometimes by analogy the large can properly be used on the small if a mere change in size is all that’s required. Factor 16. Different combination Here your combination is A, B, and C, and the prior-art references show a different, albeit possibly confusingly similar combination, say A', B, and C. Since your combination hadn’t been previously created, you’ve got a good case for patentability even though your creation is similar to an existing one. Again the last analogy holds: a personnel shield for a cannon, even though it has a magnetic firing release, is so far different from a finger ring that the prior-art combination must be regarded as different from that of the invention. Factor 17. Prior-art references would not operate in combination Here the prior-art references, even if combined, wouldn’t operate properly, such as due to some incompatibility. Suppose you’ve invented a radio receiver comprising a combined tuner-amplifier and a speaker, and the prior art consists of one patent showing a crystal tuner and an advertisement showing a large loudspeaker. The priorart elements wouldn’t operate if combined because the weak crystal tuner wouldn’t be able to drive the speaker adequately; thus a combination of the prior-art elements would be inoperative. This would militate strongly in favor of patentability. Factor 18. Over three prior-art references necessary to show your invention While not a very strong argument, if it takes more than three references to meet your inventive combination, this militates in your favor. Factor 19. References teach away from combining If the references themselves show or teach that they shouldn’t be combined, and you’re able to combine them, this militates in favor of patentability. For example, suppose a reference says that the new carbon-fiber alloy should only be used in structural members that aren’t subject to sudden shocks, but you were able to make a bike out of the carbonfiber alloy. If you’re able to use it successfully to make a bike frame, which is subject to sudden shocks, you should be able to get a patent.
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N O LO ® “The best roll-up-your-
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Products & Services Books & Softwar
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15th edition Patent It Yourself You
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Acknowledgments My deep thanks go t
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2 3 4 The Science and Magic of Inve
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8 9 E. Make and Sell Your Invention
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13 14 J. The Patent Laws of Other C
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Appendixes 1 2 Abbreviations Used i
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Your Legal Companion A. You Don’t
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Your Legal COMPANION | 3 D. Should
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C H A P T E R 7 What Should I Do Ne
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Fig. 7A—Invention Decision Chart
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Nondisclosure Agreement 1. Parties.
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Invention Disclosure Sheet of Inven
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Form 3-4: Application Data Sheet—
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Positive and Negative Factors Evalu
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Searcher’s Worksheet Sheet of Inv
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Form 10-1A: Declaration for Utility
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In the United States Patent and Tra
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Form 16-4: Recordation Form Cover S
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Universal License Agreement 1. Part
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whether or not any royalty payment
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INDex | 577 Biotechnology patents e
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Bestsellers The Small Business Star
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About the Author David Pressman is
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