Patent - Business Method Patents - Part III

By Michael Russell

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; 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.

Michael Russell

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