What Can Be Patented

A patent can be issued for any novel, useful, and unobvious invention. Congress intended the scope of possible inventions to "include anything under the sun that is made by man." Courts have affirmed that software, business methods, sales techniques, and even artificially created life forms can be patented if they satisfy the three-part test for patentability.

Medical devices are inherently useful and will typically not encounter difficulty when their usefulness is considered, although it remains informative to consider the test for patentability as a three-part inquiry. First, is it useful? Almost any level of utility is sufficient. Second, is it novel? The inventors must have been the first to develop the idea. One cannot patent something that others have previously developed and publicized, even if the others did not seek a patent. Finally, is it unobvious? The invention must not be so close to previously known devices that it would be obvious to someone having ordinary (not a high-level) skill in the relevant field.

The standard for getting a patent is lower than most people think. Talented technical people sometimes assume patents are only for remarkable inventions and thus dismiss patenting an improvement because it is obvious to them. One should not blindly accept assertions by medical researchers or engineers that every feature of a new product is obvious. Also, each feature of a new product may support a patent claim, and features can be considered separately or in combination to determiine patentability.

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