Written by: Christopher Palmisano, bluesalve Partners
Intellectual property (IP) can be a byproduct of successful innovation, however IP is not always easy to understand. There are various types of intellectual property rights, including patents, trademarks, copyrights, and trade secrets. These rights represent different types of protection for a company’s IP. If the different types of protection are not understood, it can lead to frustration and wasted resources at best; litigation and beyond at worst. For an effective IP strategy, you need preparation and a roadmap.
Standing Out in the Crowd
Patents confer special powers on their owners: the right to prohibit others from making, using, selling, importing, or even offering for sale the patented invention. So what does it take to get a patent? Put simply: it takes an idea that is different from anything else.
But how much different from anything else? Apples and oranges different, or just Red Delicious and Granny Smith different? The answer, of course, is "it depends" -- what other answer would you expect from a lawyer? It depends on what's in the prior art. Prior art is anything and everything that is publicly available before a patent application is filed.
Here's an example: let’s say you want to patent an orange, and the prior art consists only of apples (Red Delicious, Granny Smith, Braeburn, etc.). Despite apples and oranges being small round fruits, oranges have a different color, different texture, different protective layers, different flavors, different nutrients and more. Under these circumstances, it is likely that a patent examiner—the Patent Office agent who analyzes new patent applications—will find oranges to be different enough from apples to justify awarding a patent for your orange.
Now let's say the prior art includes apples, lemons and limes. There's still no orange in the prior art, but now the patent examiner has a case to argue. Such as: if we already have round fruits in red, yellow, and green, why not orange ones? That would be obvious! Or would it?
It's All In the Details
At this point, it's up to the patent applicant to explain the differences between the orange and the prior art. The applicant must convince the examiner that an orange is not so obvious, even in the face of lemons, limes and apples. For instance, the applicant could argue the unique acidity, size, shape, or chemical characteristics of oranges relative to other known fruits. If the applicant can convince the examiner that the differences are so great that they are not obvious variants of what existed before, then the examiner should grant the orange patent.
Do you think you have an orange? Get in touch and we will help you determine the likelihood of getting it patented. Better yet, for less than the cost of filing a patent application, we can help you determine whether filing an application aligns with your business objectives in the first place.
At bluesalve partners, we have an active product development process we can share with clients to accelerate and improve their batting average. Better outcomes are good for everyone, the firms, the industry, and their customers. Let’s all get better together.
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