Is My Invention New, Useful and Non-Obvious?


The following is a transcript of Episode 3 from the "Patenting for Inventors" Podcast.

I’d recommend starting with the first two episodes, but if you’ve already determined that you’d like patent protection and your invention is in one of the patent eligible categories, then the next question is whether your invention is new, non-obvious, and useful. These are three things that a patent examiner is going to look at in order to determine whether your invention is patentable. In reality, the examiner doesn’t even look at whether your invention is useful because its such a low standard that pretty much everything is considered useful. Notice how I said “useful,” and not, “great idea.” There’s no requirement that your invention has to be a great idea, or even a good idea. There’s even a website called stupid patent of the month because whether your invention is stupid doesn’t make any difference on whether you’ll get a patent. Now as I mentioned, usefulness is a really low threshold. There’s a famous case of two orange drink companies, Juicy Whip, and Orange Bang. You may have seen these types of machines, where it looks like the orange juice is being mixed around before being given to the customer. Now what’s interesting about this machine, or at least the one that was the subject of this patent dispute, is that it only looks like the orange juice is being mixed around, but really, what you see being mixed around isn’t what’s dispensed from the machine. The visual look of mixing just tricking the customers into believing that what’s coming out of the machine is a freshly mixed orange drink. Juicy Whip got a patent on their machine and sued Orange Bang because they made the same kind of machine. Then what happened is that Orange Bang said that Juicy Whip should never have even gotten a patent, because their machine didn’t actually do anything useful, it just tricked customers into thinking it was doing something useful. The court disagreed and basically said that even tricking people into thinking that there is a use, is itself useful. The point is, it’s an extremely low standard to whether something passes the utility or use test, a