The global proliferation of networked computers on the Internet has spawned explosive growth in patents in the United States and worldwide. The advent of the World Wide Web, e-commerce, and their associated technological advances have resulted in a multitude of innovative ideas worthy of the title “invention.” Historically, great technological strides are made from a flurry of inventive activities that use or improve upon a core technological advance. The Internet clearly qualifies as such a core technological advance.

Online entrepreneurs should consider the benefits of obtaining patent protection for unique functional features associated with their online businesses. While products developed for Internet commerce may be patentable, other aspects of the business may also be afforded patent protection, such as innovative features of the networking technologies and software driving the online business. Operators of online businesses must also be wary of the potential impact of infringing existing patents, in order to preemptively dodge unwelcome legal battles. The Internet itself also serves as a valuable search tool for assisting in these patent-related matters. As discussed in detail below, software and other products may be entitled to patent protection if the invention is of the following:

  1. New
  2. Useful
  3. Non-obvious

Statutory Deadlines

Generally, a patent application filed in the United States must be filed in the USPTO within one year of the date on which the invention is first sold, offered for sale, used publicly, or publicly disclosed such as in a printed publication. This one-year period is often referred to as a “grace period” in the United States. Failure to file the patent application within this grace period will prevent an inventor from ever obtaining patent protection for that invention. Further, it is important to note that most foreign countries do not recognize such a grace period, and those seeking foreign patent protection must file a patent application in the country in which patent protection is desired before any public disclosure or public use anywhere in the world. By way of treaties, many foreign countries do not require a patent application to be on file in that country prior to a public disclosure or use if, and only if, a patent application is already on file in a country that is a party to the treaty.


Title 35 of the United States Code (35 U.S.C.) provides the federal law governing patents as enacted by Congress pursuant to a Constitutional grant of authority. 35 U.S.C. §101 sets forth patentable categories of subject matter, consisting of processes, machines, articles of manufacture, compositions of matter, or any new and useful improvement of the same. Generally, a “process” refers to a method, operation, step or series of steps performed upon some subject matter leading to a useful, concrete and tangible result. A process performed on a computer to provide a useful result would, therefore, be patentable subject matter. A “machine” includes mechanisms, mechanical devices, and combinations that perform some function and produce a certain effect or result. “Compositions of matter” often arise in the chemical or biotechnical arena, and include physical mixtures of two or more ingredients. A “manufacture,” or “article of manufacture,” is a comprehensive catch-all category providing a residual class of “product” patents. Improvements to existing machines, processes, manufactures or compositions of matter also constitute patentable subject matter.

In addition to being among one of the statutory classes, an invention must prove to be new, useful and non-obvious compared to known technology and subject matter. 35 U.S.C. §101­103 sets forth these statutory requirements.

For an invention to be “new” under 35 U.S.C. §102, the invention must not have been known or used by others in the United States before the date of the patent applicant’s invention. Further, the invention must not have been patented or described in a printed publication anywhere in the world, or in public use or on sale in the United States, more than one year prior to the application filing date in the United States.

The obviousness requirement is set forth in 35 U.S.C. §103, and proves to be the most troublesome requirement to satisfy. Even an invention that is considered “new” under §102 must also prove to be non-obvious over subject matter already known or available to the public. If arriving at the inventive subject matter would have been “obvious” to a hypothetical person of ordinary skill in that technological field who has access to all the currently available information in that field, a patent may not be obtained.

This and the following posts have been copied or adopted from A Legal Guide To The INTERNET – Sixth Edition, published through a collaborative effort by the Minnesota Department of Employment & Economic Development and Merchant & Gould.