With over 9 million horses in the United States and over 58 million horses worldwide, many savvy entrepreneurs have sought patent protection for their equine related inventions. For example, horses can be severely bothered by flies and other insects especially when the insects fly into the horse's eyes. The headlined photographs illustrate two examples of "fly masks" which could be used to combat such eye irritation, at least one of which was patented. But what can be patented? This is a question that inventors, such as equine equipment manufacturers, veterinarians, farriers, equine enthusiasts and all other inventors should be asking. This article introduces some of the considerations and resources available to help address the question of patentability.
United States patent law defines five statutory classes of patentable subject matter, namely, any new and useful processes, machines, manufactures, compositions of matter, or any new and useful improvement thereof. 35 U.S.C. §101. Thus an invention must be: 1) new and useful, and 2) fit into one of the five statutory classes of patentable subject matter to be patentable. To help assist inventors, patent practitioners and the U.S. Patent and Trademark Office (USPTO) examiners in navigating through the analysis of patentability, the USPTO has established a patent classification system.3 The classification system categorizes an invention disclosed in a patent application within one or more technology "classes" and further refines each technology class with a number of "sub-classes."
To help understand the scope of patentable subject matter, several classes and subclasses of equine related inventions defined in the USPTO classification system, are introduced herein. One of the largest equine related patent classes is Class 54 for "harnesses for working animals." Class 54 includes inventions related to bridles, reins, riding saddles, strirrups, girths, pads, tail holders, blankets, fly nets, and spurs. There have been almost 1500 U.S. patents issued in these subclasses, and over 100 patent applications are pending.4 Class 59, subclasses 36-69 are related to various methods or processes of making horseshoes. Class 168 is related to farriery in general and includes horseshoes, sole pads, soft treads, fasteners, boots, medication applicators and shoeing stands. In addition, there are many other classes and subclasses in the equine field including veterinary, animal husbandary, medicines and feed.
Once an inventor conceives or reduces an invention to practice and it fits within one of the five statutory classes of patentable subject matter, one of the next steps is to determine whether the invention is "new" and "non-obvious." To make this determination, a search can be conducted to uncover any publications such as patents and published patent applications that disclose the invention before the conception or reduction to practice by the new inventor. However, with over seven million issued U.S. patents and over 400,000 new U.S. patent applications filed each year, such a search could be like finding a needle in a haystack or bale of hay.5 Thus the searches are generally focused on the USPTO classes and subclasses relating to the invention.
Typically, the inventor and their patent attorney review the search results to determine the likelihood of the USPTO finding that the invention is new and non-obvious.
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