Better Technology is Probably Patentable

Better Things are Patentable

In a previous article, we fielded the perpetual question of what can I patent?  Although there are a variety of technical legal tests for patentability, a simple test simply asks whether the inventor made something better.  A better mousetrap is probably patentable.

Patent law allows an inventor to patent “anything under the sun made by man.”  But, the invention must be new and not obvious.  Understanding what makes an invention “new” is relatively straightforward:  An invention is “new” when it differs (in any way) from the existing technology.  However, the inventor only gets one year to file a patent application after disclosing the invention.

The most important hurdle to getting a patent is showing that it was not obvious at the time it was invented.  This area of patent law is probably the most confusing.  The legal test for nonobviousness comes from a 1966 Supreme Court case.  See Graham.  In short that test requires using all available evidence to step inside the inventor’s mind at the moment of invention.  Practically speaking, accurately elucidating a person’s thoughts years after the invention is difficult.

Courts, patent professionals, and legal scholars have always struggled with the obviousness doctrine.  Supreme Court Justice Scalia has called the doctrine “gobbledygook.”  Countless others have expressed difficulty with consistently applying the “test” for obviousness.

Something Better was probably Not Obvious.

Asking whether an invention was better provides a useful back-of-the-envelope test for patentability.  Was the technology better when it was invented?  If it was better, it is probably patentable.  Here’s why:

  • A better technology implies that it is somehow different from the existing technology.  (Only different things can be better.  Otherwise they would be the same).
  • A truly better technology is unlikely to be “obvious.”  If it were obvious, why didn’t someone already do it?  In today’s world of rapid communication and innovation, better technology rarely lies dormant.  If someone invents a better mousetrap or a better website, that improved technology is quickly exploited.

Although the Better Test does not hold any legal significance, it does provide a simple framework for understanding patentability. (For the legal test see Graham).

For an inventor new to the patent system, the Better Test test should avoid contacting a patent attorney prematurely.  Generally speaking, it’s not worthwhile to pursue patenting something not better than the prior art.  Additionally, focussing on the points that makes an invention better will facilitate communication between the inventor and the patent professional.  (I often ask clients to list the most similar technology with a brief explanation of what their invention is different and better).  See Table of Differences.  Focusing on these points of innovation helps to draft strong claims that are allowed by the patent office.

 

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