Can a Marketing Strategy Be Patented?
The United States is one of the only countries that allows a wide range of processes -- including business methods and theoretically marketing strategies -- to be patented, according to the intellectual property magazine IP Watchdog. A 2010 court decision clarified and narrowed the guidelines for patentable processes and a marketing strategy can be patented only if it is "concrete and tangible."
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History
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The Patent Act of 1790 included "processes," though a 1998 Court of Appeals decision introduced a flood of business methods patents. Most successful business methods patents were tied to new communications technology, but many applications simply involved steps. In 2010, an appeal produced a decision known as "in re Bilski" which caused the U.S. Patent and Trademark Office (USPTO) to narrow its guidelines.
Gray Area
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Patents do not protect ideas or concepts, they protect processes, inventions and industrial designs. A marketing strategy walks the line between concept and process. This ambiguity means that successful patent prosecution depends on elements within the strategy -- such as new communications technology or a new medium of presentation -- and an experienced patent attorney.
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Patentability
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The USPTO tests patent applications for novelty, utility, non-obviousness and description. A marketing strategy applying for protection as a process must also meet these guidelines. "Novelty" means that no protected aspect is already patented and that no one has published or publicly demonstrated the process more than a year prior to the application. "Utility" means that the process has an industrial application and the USPTO finds most anything to by useful, whereas "non-obviousness" means that the process cannot be a logical improvement or process that any person could concoct without specialized training. According to IP Watchdog, the description is key for processes.
Description
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IP Watchdog states that, following the Bilski decision, a patent application for a process or strategy must clearly demonstrate through the description that the strategy constitutes a new invention. Furthermore, the description must show that this invention is "concrete and tangible." A patentable marketing strategy must go beyond concepts and constitute a novel presentation method or delivery process -- complete with a detailed technical description prepared by a patent attorney experienced in patent prosecution for processes.
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References
- Photo Credit Vintage Billboard image by Tahoe Bearables from Fotolia.com
