Any person who has invented or discovered a new and useful process, machine, article of manufacture, or composition of matter may obtain a patent for it. This also includes any new or useful improvement on a past invention. Laws of nature and theories are not patentable. This requirement is outlined in title 35 of the United Stated Code, Section 101 (abbreviated as 35 U.S.C. 101). You do not need to have actually constructed or used your invention to get a patent on it. Having a good idea of how your invention is made and used is sufficient.
In general, the basic principles of patentability could be based on two questions: “Is the invention useful?” and “Is the invention new?” To determine if an invention is new, we turn to 35 U.S.C. 102 and 103. Section 102 requires that an invention must not be disclosed (or “anticipated”) by any prior patent, publication, or used prior to the time of patent filing. Section 103 requires that an invention must not be an ‘obvious’ combination of existing elements.
What constitutes an “anticipated” or “obvious” invention must be proven by the Patent Office during Patent Examination. The inventor (or an experienced Patent Attorney) may present arguments contradicting a finding of “anticipation” or “obviousness.”
You may obtain a Patentability Opinion from a Patent Attorney who will determine if your invention qualifies for patent based on the nature of its subject matter and its comparison to a Prior Art search.
If you are interested in more detail related to your situation it is best to speak with an attorney.
Yuri Eliezer heads the intellectual property practice group at Founders Legal. As an entrepreneur who saw the importance of early-stage patent protection, Yuri founded SmartUp®. Clients he has served include Microsoft, Cisco, Cox, AT&T, General Electric, the Georgia Institute of Technology, and Coca-Cola.
Source: Smartup Legal