Tuesday, July 26, 2011

I-FORD: IP Found on the Road Dead

“What we’re doing is obvious.  What's patentable about it?”  This question marks the end of the IP road for many entrepreneurs. As a result, many entrepreneurs walk away from protecting otherwise patent eligible web apps, B2B programs, financial service packages, etc. 

The related IP rights eventually lapse, leaving the ideas in the public domain.  Competitors are then free to pick up the abandoned IP, breathe new life into it, and use it for their own benefit. 

Under current law (see the Bilski U.S. Supreme Court case), though, all of the above types of business-related systems (and others) might have received patent protection.  Whether or not the ideas seemed obvious to their originators misses the mark.  Indeed, almost all ideas appear obvious (in a non-legal sense) -- with 20-20 hindsight.  It is worth recalling that, without the benefit of that hindsight, the legal tests for patentability include:

 Is an idea patent eligible?
 Is it useful?
Is it new?
Is it non-obvious?
Can its conceiver(s) adequately describe how to make, use, and operate a system based on it?

Usually, the idea is patent eligible, useful, and can be adequately described.  Newness often relates to whether the patent application includes meaningful “claims.”  Therefore, the test usually boils down to whether an idea is non-obviousness. 

In a patentability sense, “obviousness” is a legal term of art having little to do with how that term is used in every day conversations.  Indeed, the concept of obviousness happens to be so complex that most Patent Attorneys spend the bulk of their time arguing about it.  Unfortunately, many entrepreneurs jump to a conclusion about the obviousness of their ideas.  They then leave their ideas for their competitors to find on the roadside not dead but quite well and ready to go to work.  

The Villhard Patent Group encourages entrepreneurs who have business services related systems under development to consult with a Patent Attorney before concluding that their ideas are “obvious” or otherwise unpatentable.  Please contact us at www.villhardpatents.com or (512) 897-0399.

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