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Legal >> Patent - Business Method Patents - Part III |
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2006-02-20
| Michael Russell
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In this third article on business method patents we're going to
continue our discussion with legal requirements for getting a
business method patent.
In order for a company or individual to get a business method
patent, the business method or software must meet the following
requirements:
1. The method or software must be on a subject matter that the
patent office defines as patentable. This is said to be anything
created by humans that falls into two classes; laws of nature,
natural phenomena and abstract ideas.
2. The method or software developed must be of some practical
use. This is fairly easy to satisfy because any functional
purpose will be good enough. A business only needs to
demonstrate that its method or software produces some tangible
result. For example; Amazon.com with their 1-click purchase
produces a tangible result, an expected purchase.
3. The method or software must be novel. In other words, this
method or software must be noticeably different from anything
else that has come before it.
4. The method or software must be what they call "non obvious."
What this means is that somebody who has ordinary skill in that
specific technology would not have been able to think of it.
The cost of getting a business method patent depends on a number
of factors, including the actual subject matter of the patent,
how complex the examination process needs to be to determine if
it is a new idea and whether or not the process goes through a
lawyer. The cost for getting a business method patent can be
anywhere from $3,000 to $15,000 unless you go through the
process yourself without hiring a lawyer. After the patent is
issued, the owner of the patent must pay maintenance fees to the
U.S. Patent and Trademark Office after 3.5, 7.5 and 11.5 years.
If the patent should be challenged, and many are, costs for
getting the patent can go through the roof.
The next legal requirement for getting a patent is novelty. An
application for a business method patent will fail the novelty
test if the method was in use for more than 1 year before the
patent was applied for. It is because of this novelty
requirement that a company must research whether this method
already exists and if not, file for a patent as quickly as
possible.
A business method is considered to be novel when it is different
in at least one area from all prior methods. This is known as
"prior art." Prior art consists of the following as per the
USPTO in these exact terms.
1. "Any published writing (including any patent) that was made
publicly available either: (1) before the date of invention of
the business method or (2) more than one year before the patent
application for the business method is filed."
2. "Any U.S. patent that has a filing date earlier than the date
of invention of the business method."
3. "Any relevant method or process (whether described in writing
or not) existing publicly before the business method was
conceived."
4. "Any public or commercial use, sale, or knowledge of the
business method more than one year before the patent application
for the business method is filed."
Finally, as to the timeline for obtaining a business method
patent, it takes two and a half to three years to get a business
method patent from the date it was filed. The patent is valid
for 20 years after filing. After that it becomes public domain
and anyone can use the method.
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