Can your invention be patented? It seems like an obvious question, but it’s actually one of the most important questions for an inventor to ask. Otherwise, you may find yourself pursuing a lengthy and expensive patent process for no good reason.

That said, when figuring out your IP, it’s just as important to know what can’t be patented as what can. Knowing what can’t be patented can help you rule out your invention–or get you started on the process of figuring out if your IP qualifies.

First, a patent is the granting of property right to an inventor by a sovereign authority (in this case, the United States Patent and Trademark Office or USPTO) for a designated period in exchange for public disclosure of the invention. This gives you exclusive rights to the patented process, system, design, or plant. After the designated period, the invention falls into public domain, but you and your invention may still be protected by other IP laws.  

What Can Be Patented?

With that in mind, let’s talk about what can be patented. The USPTO issues six types of patent documents, though most inventors only deal with three of them:

  1. Utility patent
  2. Design patent
  3. Plant patent

Utility patents are issued for the invention of a new and useful process, procedure, machine, manufacture, or composition of matter, or a new and useful improvement on an existing process, procedure, machine, manufacture, or composition of matter.

Design patents are issued for new and original designs of an item–basically, it’s legal protection for the visual appearance or “look and feel” of an item, but not the functionality of the item. A single product can have both utility and design patents protecting various aspects of the product.

Plant patents are exactly what they sound like–patents granted for the discovery or invention and asexual reproduction of a new and distinct variety of plant (other than tuber-propagated plants or plants found in an uncultivated state).

Requirements for a Patent

Regardless of the patent type, an invention can be patented if:

  • It contains patentable subject matter
  • It is novel (i.e., has not been previously disclosed to the public)
  • It is useful
  • It is non-obvious

First and foremost, the invention must fall within the currently recognized categories of patentable subject matter. These are subjects defined by the government as patentable, including (but not limited to) a new formula, a new machine, a simple tool (like a pencil), or a new process.

In order to be considered novel, the invention must not be known or used by anyone else and must not be patented or described in a publication before the date of the patent application. This goes hand-in-hand with the requirement that it has not been disclosed to the public.

Note that the “useful purpose” criteria applies only to utility patents, but otherwise, all patents must meet the above criteria.

“Non-obvious” is often the most difficult bar to clear. The USPTO asks one question: knowing what’s out there, is this invention simply the next logical step from existing products? The USPTO will look at “prior art” (the state of technical knowledge before the application) to determine if the invention is obvious to someone having ordinary skill in the art. In other words, you have to prove that you made an inventive leap.

What Can’t Be Patented?

So, what can’t be patented? You can patent almost anything made by man that is novel, useful, and non-obvious, except three categories explicitly excluded from the scope of patents:

  1. Laws of nature
  2. Physical phenomena
  3. Abstract ideas

Let’s say you make an Earth-shattering scientific discovery. You can’t patent it because you didn’t create this discovery – you just discovered it. This brings us back to laws of nature and physical phenomena (i.e., products of nature, like sunlight). If your invention occurs in nature, or was always in existence, you can’t patent it. By this logic, you can’t patent a new species of mouse you discover running around your laboratory, but you can patent a species of bacteria you genetically modified to solve a problem, so long as that genetic mutation does not occur naturally.

Abstract ideas are concepts, like algorithms and mathematical formulas. You can’t patent a concept. However, you can patent an application of that formula. So while you can’t patent a formula that produces non-repeating patterns, you can patent paper products that use the formula to prevent rolls of paper from sticking together, for example.

Let Us Guide You Through the Patent Process

Let’s be blunt: the patent process is hard. It’s a lot like running a maze, except with more complex rules and a lot of legalese. But for inventors, patent protection can be the first step in turning a big idea into a reality. Our job is to make IP easier, with a team of patent experts ready to guide you through the whole IP process successfully. That way, you can position your company to grow and succeed. Ready to take a smarter approach to your intellectual property? Click here to get started.