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Patent Mythology #3

By Linda Lewis

The Myth: What doesn’t work isn’t important.

The Reality: To be patentable, an invention must be new, useful and non-obvious. When your patent attorney is preparing your patent application, providing her with a good written record of what doesn’t work can be very helpful. Why? Because what didn’t work can be added to your application to show non-obviousness. During patent prosecution, your attorney may have to provide arguments to overcome a rejection from the examiner that your invention is not patentable because it is obvious. If you had 50 failures before your first success, you have strong evidence of non-obviousness, and that evidence can be used to overcome the obviousness rejection.

So keep good, detailed records of your work. Have the records dated, signed by the inventor and witnessed by someone who read and understood the work. Keeping a record of your failures and successes may make all the difference in overcoming the examiner’s rejections and getting your patent claims allowed.

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