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What makes an invention patentable?

There are three criteria required to make an invention patentable:

  1. Novelty: Has the invention as a whole or its essence previously been made public (e.g. publication, talk, website posting, aural disclosure, etc)? If yes, the invention is not considered novel and is not patentable any longer; it is as simple as that. This is why it is of paramount importance to consult with the Technology Transfer team, business development or commercialisation manager prior to publishing/disclosing results to the public.
  2. Inventiveness: For an invention to be inventive, one has to demonstrate that it contains an inventive step compared to the existing prior art at the time of filing. Such inventive step does not need to be Nobel Prize calibre in terms of science, but rather unexpected-enough based on the state-of-the-art knowledge in the field of the invention at the date of filing. In patent language, one talks of an invention being inventive if it is “not obvious to one reasonably skilled in the art”. In practice, if someone (say a patent examiner in the US Patent Office) can demonstrate that, by combining the knowledge from two separate pieces of prior art, one can rationally arrive at the same invention as yours, than your invention would be deemed “obvious”. The true uniqueness and subtleties of your invention, the abstraction and communication skills of the inventor(s) and the skills of the person drafting the patent application are key parameters influencing the probability.
  3. Utility: Finally, and most importantly, the invention must have some practical utility. This is usually not a difficult case to make, but can present some challenges when it comes to software-related inventions.