When it’s time to make your big idea a reality, you have a lot of questions. Like whether or not your big idea can qualify as protected intellectual property. But when it comes to innovations, what can’t be patented is just as important as what can.

Here’s a look at what can and can’t be patented, how to determine where your invention falls, and what that means for your patent process.

Categories of Patents

In order to understand what technology can’t be patented, you first have to understand what can be patented. The best way to do that is by understanding the three types of patents:

  1. Utility patents
  2. Design patents
  3. Plant patents

Utility patents are the patent most people think of when they hear the word. A utility patent is a patent for the invention or discovery of a new and useful machine, process, manufacture, or composition of matter. It may also be granted for improvements to machines, processes, compositions, and manufacture, provided that the improvements are new, useful, and non-obvious.

A design patent is a much narrower patent protecting the visual design of an item. It may be granted for an object with a distinctive configuration, distinctive ornamentation, or both. Basically, rather than patenting the object, a design patent protects the design of that object.

Plant patents, as the name implies, are all about plants. These patents are granted when a new plant is discovered and asexually reproduced.

Patentable vs. Non-Patentable

This brings us to the question of patentable versus non-patentable. The list of non-patentable items is much shorter than that list of patentable ones. Non-patentable items include:

  • A discovery, scientific theory, or mathematical method
  • Nonfunctioning products
  • A scheme, rule, or method for performing a mental task
  • Informative presentations
  • Medical or veterinary procedures or methods

That sounds simple enough, but it gets a bit more complicated for scientific discoveries. Let’s say you find a species of mouse running around in your lab that has never been discovered before. That mouse is a physical phenomena, or a product of nature, meaning it occurs in nature and thus cannot be patented. The same goes for discovering genes, hormones, or things of the like. However, if you find a way to isolate, purify, or modify the product of nature, then it becomes patentable.

This brings us back to the question of what can be patented.

5 Elements of Patent Eligibility

Under the U.S. Patent and Trademark Office (USPTO), there are five elements of patent eligibility:

  1. It must cover subject matter Congress has defined as patentable
  2. It must have utility (i.e. it must be useful)
  3. It must be “novel” (new)
  4. It must be “non-obvious” (i.e. not a logical next step of an already patented invention)
  5. It must not have been disclosed to the public prior to the patent application

Let’s break that down…

Patentable Subject Matter

The basis of United States patent law can be found in Title 35 of the U.S. Code, The Patent Act of 1952, Title 37 of the U.S. Code, General Agreement on Tariffs and Trade (GATT), but that can make for some dense reading.

In plain English, for a piece of technology to be patentable it must fit under the requirements of one of the three patents available through the USPTO. Since most patents fall under the umbrella of utility patents, that means most patentable technology must fall under one of the following categories:

  • Machine (i.e. something that uses energy to complete a task)
  • Process (i.e. a method of creating physical change in a material)
  • Manufacture (i.e. processes that create work)
  • Composition of matter (i.e. a compound created through two or more elements)
  • Improvement (i.e. a new or improved element of an existing invention)

Common examples of items that fit under those classifications include everything from computer software to business processes to medicines to fabrics.

Novel and Non-Obvious

The novel and non-obvious parts of patent law are where things get a bit more complicated. For an invention to be “novel” or new, it must not be known or used by anyone else in the U.S., and it must not be patented (or described via publication one year prior to the patent application) in the U.S. or a foreign country. If the invention is described in a publication, or if it is in use or for sale prior to the application, the patent will be denied.

The non-obvious test is the most difficult bar to clear in the entire patentability process. Basically, USPTO will look at the invention and ask, “Based on existing inventions, is this invention a logical next step from any of them?”

It will also examine “prior art.” In other words, it will examine the technical knowledge behind the patent application to determine whether the invention is obvious to anyone having prior skill in the art. In other words, there has to be a real innovative leap, and someone with skill in this area could not have easily reached the same conclusion on their own.

Your innovation is your company’s best asset. So when it’s time to pursue a patent, don’t leave your big idea up in the air. We can help. Get started today