Key Takeaways:

  • A patentable invention must be novel, non-obvious and have practical use.

  • Non-patentable items include abstract ideas, natural phenomena, and some medical procedures and business methods.

  • Innovation is different from invention. All inventions may be patentable but not all innovations are patentable.

  • Conducting a patentability search is very important before applying for a patent.

Coming up with a new innovation can be exciting, and it is completely understandable if you want to seek patent protection to secure the rights to your intellectual property. However, not all ideas or inventions are patentable. For this reason, understanding the differences between patentable and non-patentable inventions is important if you want to protect your creative efforts and gain a competitive edge when entering the market.
 

In this guide, we will walk you through the differences between patentable and non-patentable inventions, as well as the difference between innovation and invention, and the steps you can take to determine if your work or idea is patentable.

What Is A Patent?

To put it simply, patents are legal rights that give the owner the right to exclude others from making, using, selling, or importing the claimed invention, for a set period of time. In essence, in exchange for disclosing the invention, a type of monopoly is granted. 
 

Once granted, the owner of the patent rights gets the exclusive right to make, use, sell, and import their invention for a fixed amount of time–typically for about 15 to 20 years. This gives owners incredible opportunities to market their invention and earn money through licensing and/or commercialization. 
 

Once the patent has expired, the rights to make, use, sell, and import your inventions become public. 

Typically, there are three types of patents under which inventors and/or assignees can apply to secure protection and rights for their inventions. These are:
 

  • Design Patents: These patents offer protection to anyone who has invented a new, original ornamental design, such as a product design.

  • Plant Patents: These are for the creation of new, mutant or hybrid plants.

  • Utility Patents: These patents may be granted to anyone who invents or discovers a new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvements of these.
     

Under specific circumstances, more than one type of patent right may be applicable to an invention.

Patentable Meaning Explained

Now that you understand what is meant by a patent, and how they work, it’s time to see what we mean when we say something is “patentable”. In order for any invention to be “patentable”, patent law requires the invention to meet some specific criteria, such as the ones given below.
 

  1. Novelty (Newness): This criteria means that the invention must be something new or original. It must not have been known, used or publicly disclosed before filing for patent rights. In the United States, an exception can be made to this rule, provided that the patent application is filed within one year of disclosure. This is considered a “grace period”. Most countries have a grace period. However, some countries do not consider any grace periods.
     

  2. Useful Requirement: In order for an invention to be patented, it must have a clearly identifiable “useful” purpose or a practical application. 
     

  3. Non-Obviousness: If the invention is an improvement of sorts, it must be “non-obvious” to a person having ordinary skill in the art. Obviousness and non-obviousness can be a complex area of patent law. It is recommended to speak with a patent attorney for non-obviousness considerations.
     

  4. Subject Matter: The invention must fall under certain categories such as processes, machines, articles of manufacture or composition of matter in order to be eligible for a patent.

 

It is important to note that just because your invention meets these criteria does not guarantee that it will be granted a patent. Other applicable areas of patent law apply which affect which patents are granted. However, it will help make your application stronger when you file for patent protection by gaining understanding to the above. Additional understanding and shaping of a patent application can be gained through a patent search and analysis and discussions with a patent attorney. 

Non-Patentable Inventions: What Cannot Be Patented

Since patentable inventions must be original, usable, and ground-breaking, it is important to understand what type of invention cannot be patented. Things like an abstract idea or naturally occurring phenomenon cannot be patented. Below is a more comprehensive list of things that are considered “non-patentable inventions.”
 

  1. Abstract Ideas: Any kind of concept, formula, theory or algorithm without a specific, demonstrable application cannot be patented.
     

  2. Laws of Nature: Discovery of phenomenon or substances that exist naturally are considered non-patentable inventions. 
     

  3. Methods of Doing Business: Any process or method that is purely financial, organizational or economic are non-patentable unless they contain some type of innovative, novel technological component.
     

  4. Medical Procedures: Some medical or surgical processes may not be patented. However, the specific devices used in procedures may be patented.

 

What qualifies as an abstract idea can be complicated in patent law. What qualifies as a medical procedure may also have complications. If in doubt, it would be best to discuss with a patent attorney.

Difference Between Patentable Search Opinion And Non-Infringement Opinion

In addition to understanding what can be patentable, inventors should also know the difference between a patentable search opinion and a non-infringement opinion.
 

A patentable search opinion is when an invention is examined to see if it meets the criteria for a patent. It involves a complex and thorough process of reviewing previous patents, published research, and various other steps to ensure that an invention is eligible for a patent.
 

On the other hand, a non-infringement opinion is when an invention is evaluated to see if it violates any existing patent rights.
 

For inventors, understanding the difference between both opinions is crucial. This is because a patentable search opinion helps an inventor understand the likelihood of their invention being granted a patent while a non-infringement opinion evaluates whether that product of the invention is infringing or not infringing on  someone else’s patent.

How To Determine If An Idea Is Patentable?

If you want to find out whether your idea or invention is patentable, it is recommended to consult a patent attorney. Additionally, there are several steps you can take in your own preliminary research. Below are some of the steps to gain an understanding on your invention.

Step 1: Check Patentable Subject Matter

It’s important to check the subject matter for your patent carefully. Your patent may fall under categories such as processes, compositions of matter, manufacturing methods, etc.

Step 2: Conduct Initial Research

The first step is to conduct a preliminary patent search to see if similar inventions exist. There are many patent offices that provide searchable patent databases, which you can use to check for existing patents and published patents. 

Step 3: Understand Novelty 

Understanding novelty under patent law can be complex. Since one of the main eligibility criteria for a patent is novelty, you must conduct thorough research to make sure your idea is original enough to apply for a patent. This includes checking published research, prior patents, etc.

Step 4: Assess Non-Obviousness

This step can be very difficult, but still important. It requires the help of experts in the field to see if your idea is an improvement that is easy to deduce, or a truly novel invention.

Step 5: Get Professional Advice 

Once you have done your own preliminary research, it is important for you to consult with a patent attorney to get further clarification on whether you are ready to apply for a patent for your invention. 
 

With this guide, you can now have an improved understanding of the differences between patentable and non-patentable inventions. By making sure that your invention meets the necessary criteria for a patent, you can proceed with your application with confidence. 
 

If you need further assistance, you can reach out to UpCounsel’s resources to contact patent attorneys and get professional advice to secure legal rights, protection and maximize the commercial potential of your invention.

FAQ

  • Is the Human Genome Patentable?

No, the human genome is not patentable as it exists naturally. Any naturally occurring phenomenon cannot be patented.

 

  • What are 4 examples of what cannot be patented?

Abstract ideas, natural phenomena, methods of doing business, and medical procedures are 4 examples of things that cannot be patented. 

 

  • Can software be patented?

Software can be patented as long as it meets all the eligibility requirements for a patent.

 

  • Is it possible to patent a method or process?

Certain methods and processes are patentable as long as they meet the eligibility requirements of being novel, non-obvious, and practical applicability.