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                      Mario D. Theriault & Company
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THE THREE TESTS FOR PATENTABILITY  (Simplified Version)

NOVELTY -  In order to have novelty, the invention must not have been disclosed publicly anywhere in the world.  The novelty of an invention is lost on a first sale. Only two countries in the World give the inventor a grace period of 12 months to file a patent application after the novelty of the invention has been lost. These countries are Canada and USA. All other countries require absolute novelty. Some countries do not even allow "secret use" of the invention before the filing date.

UTILITY - A patentable invention must have commercial utility.  The invention must be related to a field of technology; "the branch of knowledge dealing with engineering or applied sciences". The invention must be more than a mere scientific principle or an abstract theorem.  The invention must have a practical or practicable form.  The invention must have one or more physical elements. 

INVENTIVENESS -  The biggest test of all is perhaps the test of inventiveness. The question to be asked is whether or not there is teaching, suggestion, or motivation in the prior art that could have led a person of "ordinary skills" and "ordinary creativity" to modify or to combine the teachings in the prior art to arrive at the claimed invention. The test goes further by asking whether the claimed subject-matter is obvious because the route to the invention, ( the inventor's approach), would have been "obvious to try". Ref: (KSR Int. v. Teleflex Inc. USA 2007) and (Apotex Inc. v. Sanofi-Synthelabo Canada, Inc. 2009.)    Inventiveness also means that the invention has a new and unexpected result. A patentable combination gives a result which is more than the sum of the individual elements.

A PATENT IS AN ASSET

A patent is an exclusive right to manufacture, sell, import and use an invention. This exclusive right extends over a period of 20 years from the date of filing of the patent application.

When someone starts a business, investment is made to purchase manufacturing equipment, tooling, vehicles, computers, office furniture, a building and even a parcel of land. These are considered assets.

A patent is also an asset. A patent is a Aparcel of land in the field of Intellectual Property@. A patent can be sold, licensed, mortgaged and passed on as heritage. A patent allows a business to charge a premium for the patented product, to pay royalties to the inventor, to invest in marketing, to invest in product quality, in better manufacturing equipment, in employee benefits and training, in order for the business to establish and maintain a leading edge in the market place.

A patentee has recourse to courts of law to prevent an infringement of a patent.  The patentee can team up with one or more of its licensees to sue an infringer.

It is known that infringement suits are expensive. However, the patentee has the options to sue now, to sue later, to simply do nothing or to sell a license to the infringer for a nominal fee to stop the infringing condition. Without a patent there is no option.

Therefore, a patent is the most valuable asset in a business.

A PATENT IS ALSO A PAGE OF HISTORY

 A patent is granted to an inventor for having advanced a science sector one step further. Copies of patents are classified by functions and are kept at the Patent Office for consultation by the public. People are encouraged to consult the patent system, before starting to work on a design project to avoid duplication of effort for example, to find a solution to a common problem, or simply to learn about the evolution of a certain technology.

Patents are kept on file at the Patent Office forever. Patents are consulted extensively and will continue to be consulted for centuries to come. Therefore, Patent Agents have the responsibility of preparing patent applications that have outstanding quality and which will continue to reflect the excellence and pride of the inventors for many generations.

E-mail: mario@patentway.com