When you’re thinking about filing for a patent, you might be wondering: “what is patentability?” There are several factors that make your invention eligible for protection. These factors are Marketability, Non-obviousness, Inventorship, and Inventive Step. This article will provide an overview of each. In addition, you’ll learn about what constitutes an ‘invention’. If you don’t know what these terms mean, or are confused about which ones to pursue, keep reading.

What Is Patentability?

Patentability is a part of how do I patent an idea. It consists of three requirements or criteria that must be met under the United States patent laws.

The invention must be:

  • Non-obvious
  • Novel
  • Useful

Patents are an exclusive right that is granted to an invention. This can be product, process, or method that is new or improves on an existing solution. In order to obtain a patent, the public must have access to technical information regarding the invention in a patent application.

Patent rights grant the exclusive right to use, reproduce, or sell protected inventions without restriction from any other parties. The issuing authority receives the right to publish details of the invention in exchange.

Patents are granted only for a limited time. For example, 20 years after the filing date for utility and plant patents. Design patents worth last for 14 to 15 years. Patents granted in the United States are limited to protection within the United States. The applicant must file a request with the governing authority for that country in order to extend protection.

Importance of patentability

  • Patentees have the exclusive right to use the invention for a specified period.
  • You can get a monetary reward by granting licenses or assigning the patent. Some businesses are only in it to collect royalties from patents they license.
  • It prohibits others from using the invention and anyone who infringes it must pay the penalties.
  • Alternatives to the patented product are needed by other competitors. They cannot use the patentee’s rights or infringe them. This is a great way to grow technology and industry.
  • Patent specifications do not reveal details of manufacture. This means that the patent owner can make separate agreements with the licensee in order to transfer some consideration. This is called know-how. This covers techniques for manufacturing products that aren’t patentable, but are not listed in the specification.

factors to consider before submitting an application for an invention patent

You are about to file a patent application. While you are working with your patent attorney in getting everything ready for filing it is important to take a step back and see the bigger picture. These are factors to consider before submitting an application:

#1. Marketability

Patentability and marketability are two important factors to consider before submitting an application for an invention patent. Patentability is the degree to which the invention will satisfy a market need. Despite the fact that inventions with patents are likely to be better sellers than those without, it is also important to consider timing. In most countries, absolute novelty must be established before an invention can be marketed. In most cases, that means filing a priority patent application before the invention becomes widely available. To meet this requirement, a carefully-planned strategy and a market plan will take absolute novelty into account.

The sweet spot in the invention matrix is where patentability and marketability intersect. This means that the invention is not only a good idea, but it is also a viable product that can be exploited or licensed. While patentability may secure an issued patent, it doesn’t mean it will translate to a market, and may even be faced with competitors. To maximize your chances of success, make sure your idea is marketable and possesses the characteristics of marketable products and services.

#2. Non-obviousness

While non-obviousness is generally an issue of personal taste and interpretation, it’s important to understand how it’s determined in patent cases. Unlike with the obviousness inquiry, patentability is based on evidence of inventiveness that goes beyond ordinary skill in the art. There are specific criteria that the patent examiner must look at in deciding whether a given invention is obvious.

Listed below are some ways to determine whether your invention is obvious:

(1) Determine the scope of the prior art.

(2) Compare the claims with the prior art.

(3) Decide the level of ordinary skilled in the relevant art.

(4) Examine objective indicia that non-obviousness.

For example, if an invention was created to make a coffee holder, it might not be considered a patentable idea. Yet, the invention itself is clearly related to a coffee holder. As with the Java Jacket, the patent claims emphasize the interlocking of opposed slits at the ends of the band. In other words, the invention is not “obvious” as long as it is sufficiently different from the prior art to be considered patentable.

#3. Inventorship

The first step to claiming a patent is to prove that the invention is truly your own. While the U.S. Federal Circuit Court of Appeals has ruled that a sovereign cannot be an inventor, a legal entity can be. The inventor must be a natural person who “conceives of an idea,” and this process must be completed by a person.

In a recent case, Stephen Thaler, the inventor of the DABUS invention, tried to claim the creation as his own by filing two patent applications naming the computer-as-inventor. However, the USPTO ruled that only “natural persons” could be named as the inventor of a patent, and it rejected both applications. This decision has created a legal quagmire affecting patentability of artificial intelligence.

Among the issues at stake is how to distinguish artificial intelligence (AI) from human inventions. Currently, the patent laws recognize only individuals as the inventors of an invention. But as AI becomes more sophisticated and pharmaceutical companies begin to use it to create new products, questions arising as to who would be the patent owner of such an AI-derived invention are surfacing. This uncertainty may ultimately impact the quality of the patented product.

AI has advanced significantly since the 1950s. With the use of machine learning and artificial neural networks, artificial intelligence systems have grown to incredible levels. Recently, a patent applications claiming that the AI machine DABUS created patentable inventions, listing the AI machine as an inventor have provoked a polarized debate among legal and academic communities. The legal and academic communities are now watching this case closely to determine how it affects the patentability of AI-based products.

#4. Inventive step

Unlike novelty, the ‘inventive’ step is not as objective as novelty, and is determined by asking, would the claimed invention have been obvious to a person of the art? A skilled person is someone who has been doing his or her job for several years, and has accumulated enough knowledge to recognize minor differences among various methods. Therefore, a skilled person must have a reasonable expectation of learning the new method, and the applicant must demonstrate that the new method is novel and inventive.

The ‘invention’ must be a solution to a problem. If a person of ordinary skill in the art could come up with the solution, it is not an ‘inventive’ step. The solution must be better than the existing solutions in terms of efficacy and accuracy. Inventive step is often the difference between an invention that’s obvious and one that’s not. For example, if you invented a method of a product, you must prove that it’s more useful than any other.

The definition of an ‘inventive’ step varies in different jurisdictions. While the Patents Act does not define the term ‘person of skill in the art’, the patentability threshold is much higher than those for a simple method of making a product. It requires the inventor to identify a problem and solve it. The ‘invention’ should be new enough to justify a patent registration.

The rules for patentability are based on a number of important considerations. Innovativeness rules are meant to encourage people to come up with new ideas and protect them, rather than to buy existing products and make money from them. However, in many cases, it is not possible to claim an idea that’s obvious in the United States. However, the “invention” requirement is required in many countries, including the U.S.


what constitutes an invention

While abstract ideas cannot be patentable, many ideas can be implemented in a way (an invention), that falls within the scope of patentable subject matter. To be a patentable invention as a utility patent, an invention must meet four requirements:

(1) It must contain patent eligible subject material,

(2) It must be novel,

(3) It must be practical, and

(4) It must not be obvious. 

Patent Opposition

Patent opposition allows third parties to review the patentability criteria and validity of a patent application pending. It also gives them the opportunity to examine the granted patent.

Opposition mechanisms are available in many countries’ patent systems. Third parties can use opposition system to challenge the grant of patents within the time specified by the applicable law.

A person opposing a patent must raise at least one ground for opposition from the list of those allowed by law. Opposition procedures are closely linked to the patent grant procedure.

An opposition may be done before the grant of a patent also known as pre-grant opposition or after the grant of a patent also known as post-grant opposition.

What are the Grounds for Patent Opposition?

The following are grounds for opposition:

  1. The claimed invention was published before the priority date of the claim.
  2. The invention was claimed previously with a prior priority date.
  3. public knowledge or use prior to the priority date for that claim.
  4. Lack of creativity and obviousness.
  5. non patentable subject matter.
  6. A complete specification is not sufficient and clear to describe the invention or the process by which it will be done.
  7. Non-disclosure of information as required by 35 U.S.C. 112(a).
  8. Where priority of provisional application claims, the application must be filed no later than 12 months after the priority date for the first application.
  9. Nondisclosure of geographical origin and incorrect mentioning of source of biological material used in the invention.

It is essential that patents are only granted to innovations that meet the criteria for patentability which justify exclusive rights. The purpose of opposition proceedings is to stop wrongful obtaining patents or  frivolous claiming or petty inventions.  law provide pre-grant and post-grant obstruction of the unlawful and grant of patent. Within nine months from the publication of the mention of patent granting, opposition must be filed.


Patentability means that your invention is patentable. That is to say your invention is unique, non-obvious, and uses the required criteria for patent protection. Patent law is complex. You should seek the advice of a skilled attorney if you have an invention you consider patentable. Get your patents now with PatentPC and protect your unicorn ideas.