PTO spokeswoman - invention must be ‘very innovative’ to be patentable

Fortune Small Business recently ran “A guide to what you can (and can’t) patent” as a response to a question posed by a reader regarding the patentability of “an idea for a website.”

In an attempt to get the best information for its audience, Fortune went straight to the United States Patent and Trademark Office.

Good idea, right?

I’m not so sure.

Jennifer Rankin Byrne, the Office spokeswoman interviewed for the article, properly told the author that patentability might exist for any business method that underlies the web site idea.

So far, so good.

She didn’t stop there, though. Nope. In an apparent attempt to reference the basic requirements for patentability (utility, novelty, and nonobviousness), Ms. Rankin Byrne noted that:

“…it would have to be representing something very innovative and new….”

(emphasis mine)

What?

It has to be ‘very innovative‘? Since when? Since the Supreme Court decided KSR v. Teleflex, perhaps?

To make matters worse, she never mentioned the nonobviousness requirement:

“It would have to be some new, novel technology or old technology that’s used in a new way. It would have to be representing something very innovative and new. It would have to be something more than a concept. The person applying for the patent would have to explain in a very detailed way how it would work,” Rankin Byrne said.

Some PTO watchers may see this official comment as harmless, while others may view it as accurately reflecting current examination policy.

No matter.

What matters to me is how the article’s audience views it.

Seems to me that the Patent Office just sent a strong message directly to our small business community: We only grant patents on very innovative inventions, so please don’t waste your time disclosing your plain old novel, useful and nonobvious inventions.

NOTE: Fortunately, the author of the article included a paragraph that notes the proper requirements for patentability.