Can I Patent My Idea? Exploring the Inventive Step

Patents are often top-of-mind when it comes to conversations about realising an idea. The entrepreneurs driving the idea, the designers working to bring it to life, and the investors funding the development, will all be thinking about – or at least considering – patentability. Many entrepreneurs reach out to share their concepts and ideas, many of which are genius, imaginative or needed. But not all are patentable. So, what does it take for an idea to have patent potential?

The answer: an inventive step.

What is the Inventive Step? And Why Does it Matter? 

One key aspect involved in a successful patent application is that the product or technology includes or delivers an inventive step. Given how vital this aspect of patentability is, we need to understand what exactly is this requirement and what counts as an inventive step. Many innovations that crop up across today’s R&D scene could easily be revered for their inventiveness, but here is where the concept of the inventive step becomes relevant. In the context of patentability, the inventive step refers specifically to the invention being ‘not obvious to a person skilled in the art’. Thus, for a product feature or technology to be granted patent protection, the novel aspect must be novel not just to anyone, but it must be not obvious to those who are skilled in the field or art in which the product exists.

It’s essential to fully consider this aspect of patentability. There are countless products that are genuinely clever, intuitive, imaginative – capable of delighting or compelling users; there are products that offer a much-needed, highly effective solution to a problem the end-consumer might be experiencing. This however, doesn’t automatically align with the patentability of the idea. For patent eligibility, the idea must be surprising or not obvious to someone with expertise in the sector, to a person ‘skilled in the art’. Understanding this precise requirement can help you think more critically about your invention, what it does, and where its usefulness or innovation really lies.

Often the ability to patent a product or design is seen as the ultimate validation and risk reduction which can spur an entrepreneur to pursue the idea on a commercial scale. This can be somewhat misleading though. When it comes to new product development, despite their publicity, patents are not the only option; if your design idea doesn’t fulfil the inventive step requirement, there are numerous other avenues to look down. In a recent interview with Design Registration Specialist, Michelle Ward we unearthed just how valuable and diverse a source of IP, Design Registration can be. Investor Christian Kumar also shared with us, that product iterations are another strategic way to gain market protection through the cultivation of brand loyalty. The point here is that just because an idea can’t be patented, doesn’t mean it won’t be a success.

Upon first impression, it may seem that this requirement for an inventive step can make it harder to patent a design, but importantly, the inventive step also plays a vital role in enabling innovation to take place and remain accessible. If the requirement of the inventive step didn’t exist, barriers to innovation could be far more frequent as even regular or obvious iterations and product developments might result in an infringement.

Global tip: in the UK and Europe this requirement is referred to as the inventive step, while in the US it is more commonly referred to as non-obviousness.

Who Can We Count as a Person Skilled in the Art? 

According to the Intellectual Property Office this so-called ‘skilled person’ is neither a Nobel Prize winner nor the lowest common denominator; they must be competent and capable but are unlikely to have an awareness of specific patents. This is expanded into a consideration of the skilled person’s creativity level: the IPO states that this person should have sufficient knowledge and skill to make ‘routine developments but not to exercise inventive ingenuity or think laterally’.

How is the Inventive Step Assessed? 

Understanding how the presence of an inventive step is assessed is a useful question, and the answer depends on where you are filing your patent application. The Intellectual Property Office (UK) assesses whether or not an inventive step is present with a focus on objectivity, evaluating whether objectively, the invention would have been obvious to a person skilled in the art. By distinction, the European Patent Office (EPO) is slightly more specific. The EPO evaluates whether or not an inventive step has been taken based on a problem-solution framework. This means exploring the core problem at which the product, invention or technology is aimed, and then analysing whether the proposed solution to the problem is an obvious solution or not. Of course, not every patent application or sector is the same and there are a number of factors that are considered in every case.

Final Thoughts

If you think there might be patent potential in your design idea it’s always worth consulting a patent attorney (ITERATE Design + Innovation has a network of connections across the IP services to help you start the conversation), but if you are in the initial stages of exploring an idea, then, assessing the wider sector and questioning whether your concept, technology, or design breaks new ground in terms of conventional wisdom, can help you understand whether there might be patent potential in your idea.

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