In a previous blog, we discussed the fact that an important part of filing for a patent is demonstrating the objective superiority of your invention versus similar products. Generally, this is accomplished by performing a comparative experiment, in which the competing items are put through identical tests, with their varying performances carefully measured and compared after the fact.
Experiments suitable to be used as supporting data for a patent filing have five required components:
- A hypothesis predicting how your invention will perform compared to its counterparts. This can be very simple, such as, “My invention will perform better than the other tested products,” or can be more specific: “This fuel filter will result in a 15% improvement in fuel efficiency when compared to existing products.”
- An experiment which tests the hypothesis. If you’ve created a paper towel that you predict in your hypothesis will absorb 20% more water than the other tested products, and then put it through an experiment in which you test its ability to pick up dust, then your experiment won’t support your hypothesis, and will be useless.
- A prior art device that is tested under identical conditions. By a “prior art device,” we simply mean a comparable product. If you’ve created a better paper towel, then you’ll want to compare it to one or more samples of paper towels on the market.
- A data set from the experiment which shows results that both exceed the hypothesis and outperform the prior art device. If you predicted that your paper would absorb more water, then you need to show that you measured the amount of water measured by each test sample, and that your invention absorbed more water than your hypothesis and the prior art paper towel.
- A conclusion which shows that the results demonstrated by your invention are different in kind, rather than merely being different in degree. What this means is: (a) Could a skilled person with the necessary background knowledge duplicate your results, or (b) Can your results be duplicated by making minor changes to an existing product (i.e. altering the amounts of various ingredients in a drug). If either of these is true, then the patent application will fail.
It’s important to note that your experiment needs to only have a single variable. That is, there should only be a single key difference—which is an integral part of what you are attempting to patent—between your invention and the products against which you are comparing it. The USPTO has dismissed patent applications due to experiments that don’t clearly demonstrate a causal relationship between the alteration and the demonstrated improvement.
This can be tricky where your invention has many improvements over the closest prior art device. In this situation you need to make an intermediate product that is identical to your invention except for one difference that is clearly articulated in your claims. You test this intermediate product as the prior art device.
Demonstrating the claimed effectiveness of your invention with an experiment which supports these five points will go a long ways towards securing a patent. However, as we’ll discuss soon, it’s not enough to show that your product is better than the rest. You have to demonstrate unexpected results from your invention that are not the product of obvious innovations.