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Requirements for Patentability

There are five statutory requirements for an invention to be granted a utility patent. First, the invention must be of the proper subject matter (any process, machine, manufacture, composition of matter or improvement thereof). Second, the invention must have a proven utility—it must do something useful. Third, the invention must be disclosed in the application to such an extent that a person having ordinary skill in the art could replicate the invention based on the description. Fourth, the invention must be new—it cannot have been invented before. Lastly, the invention must be nonobvious—it cannot be merely be an improvement over an already existing invention that would have been obvious to a person having ordinary skill in the art.

Plant patents generally have the same requirements as utility patents.  First, the plant must be patentable subject matter. The plant must be a new and distinct variety of plant that is not in an uncultivated state and does not propagate itself by producing tubers (like potatoes). The inventor must have also asexually reproduced the plant, excluding inventors’ claims to hybrid plants that cannot asexually reproduce. The plant could be invented or discovered but if discovered, the plant must have been found in a cultivated area. There is no utility requirement for plant patents. The second requirement is that the invention be novel. It must not have been sold, released, or disclosed in a written publication more than one year prior to the inventor’s application. It must differ from other known plants by at least one distinguishing characteristic. Thirdly, the invented plant must be disclosed in the application in a manner that a person having ordinary skill in the art could replicate the invention. Lastly, the invented plant must not have been obvious to one having ordinary skill in the art at the time of the invention.

Design patents also have similar requirements to the other types of patents. First a design must fall within the class of statutorily protected subject matter. Here a design must be ornamental and not governed by considerations of the functionality of the object in which it is embodied. The design may be surface ornamentation or internal configuration. Secondly, the design must be new. It must not have been publically used, sold, or described in a printed publication more than one year prior to the filing of the application.  The design patent has no utility requirement; in fact utility of the design weighs heavily against a finding of patentability. The design must also be sufficiently disclosed in the application so that a person having ordinary skill in the art would be able to replicate the design. Lastly, the design must not be obvious to a person having ordinary skill in the art.

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