Key Takeaways

  • Not all inventions are eligible for patent protection—abstract ideas, natural phenomena, laws of nature, and artistic creations are considered non-patentable inventions.
  • The USPTO evaluates novelty, usefulness, and non-obviousness, but many categories (such as algorithms, mental processes, and perpetual motion machines) are excluded regardless.
  • Certain fields like medical procedures, business methods, and software may only be patentable under narrow, specific conditions.
  • Alternatives to patents include copyrights, trademarks, and trade secrets, which may provide appropriate protection depending on the type of creation.
  • International rules (e.g., under India’s Patents Act) also exclude broad categories, reflecting global consistency in what counts as non-patentable.

Non patented ideas are not protected by a federal patent issued by the United States Patent and Trademark Office (USPTO). To qualify for a patent, an idea must be brand new, have some utility, and not be obvious to anyone with typical skill in the associated industry. Having a patent means that no one else can make, use, sell, or distribute the invention for a period of 20 years.

What Ideas Can Be Patented?

An idea refers to a creation that has been imagined but not yet prototyped, produced, or manufactured. Rather, it is a concept in the earliest stage of the invention process, documented only in notes or sketches. Certain ideas, such as product names and logos, are not covered by patents but instead by trademark or copyright.

Patents are reserved for products with usefulness, including but not limited to computer software and hardware, mechanical devices, biotechnology, and methods for manufacturing or production. Abstract ideas, mathematical equations, laws of nature, basic computer processes, and natural phenomena are not patentable.

If you have an idea and are wondering whether it can be patented, ask yourself the following questions:

  • Is the idea completely different from existing technology?
  • Could someone in the field make or use the idea based on your detailed description?
  • Would the idea not be obvious to someone with typical skill in the field?

If you don't already have a detailed description of your idea, you may want to consult with a patent attorney. He or she will be able to advise about the required level of detail for a patentable invention in your industry.

An idea that has already been publicly disclosed, whether in a blog or online post, live presentation, video, or patent application, is not eligible for patent protection.

Common Examples of Non-Patentable Inventions

While many inventions may qualify for protection, the law explicitly excludes entire categories of non-patentable inventions. Common examples include:

  • Abstract ideas and mathematical formulas – Pure theories, equations, or algorithms without a practical application cannot be patented.
  • Laws of nature and natural phenomena – Discovering gravity, DNA sequences, or naturally occurring plants and minerals is not enough; these exist independently of human effort.
  • Mental processes – Methods that can be performed entirely by human thought, such as mental calculations or logical reasoning, are not patentable.
  • Artistic and literary works – Paintings, music, books, and films fall under copyright law, not patent law.
  • Medical and surgical procedures – Many jurisdictions restrict or ban patents on methods of treatment to avoid limiting access to care.
  • Perpetual motion machines – Because they violate established scientific principles, these inventions are typically rejected outright.

These exclusions ensure that patents reward true technological advancement while keeping fundamental knowledge and essential services accessible to the public.

How Does the USPTO Determine Whether To Issue a Patent?

Section 35 of the U.S. Code defines which items can be patented. The list includes:

  • Composition of matter, such as a pharmaceutical or paint formula.
  • Manufactured items such as a table or notebook.
  • Machine.
  • Process.
  • Improvement to an already patented item.

When reviewing a patent application, the USPTO considers the following elements that determine patentability.

  • Novelty: This means that nothing else like your idea has ever become public knowledge anywhere in the world, including previous patents, published works, goods already for sale, and traditional practices.
  • Usefulness: Your idea must serve a purpose, solve a problem, or otherwise display true utility.
  • Non-obviousness: A person with typical skill in the field covered by the idea couldn't intuitively come up with the invention. Examples of inventions that are obvious include those that create predictable results from combining prior art elements, trading one element for another, or applying a known technique to an existing device.

If the USPTO rejects your application on the grounds of non-obviousness, you may be able to successfully appeal by arguing that others have failed to create a similar invention, the idea fills a long-held need, the product has succeeded commercially, others have copied the invention, or unexpected results are produced from the existing prior art. This would also include a substantial improvement over the expected results.

International Perspectives on Non-Patentable Inventions

Patent eligibility is not only a U.S. concept—many countries have parallel restrictions. For example, India’s Patents Act of 1970 explicitly excludes categories such as:

  • Inventions contrary to public order, morality, or environmental health.
  • Discoveries of new living or non-living substances occurring in nature.
  • Mathematical and business methods or computer programs as such.
  • Schemes or rules for mental activities, gaming, or teaching.
  • Methods of agriculture and horticulture.

These global restrictions reflect a shared principle: patents should reward technical solutions that advance society, not monopolize knowledge or ideas that belong in the public domain.

What Are the Steps To Patent an Idea?

Once you determine that you have a patentable idea that fits the criteria of novelty, non-obviousness, and usefulness, you should decide whether you want to seek patent protection. This depends on whether you want limited or perpetual protection for your invention, and whether you want to shield your idea from the public or just from your competitors.

When you decide to file a patent application with the USPTO, it will be reviewed by a patent examiner. This individual will compare your idea to prior art to determine if it can be issued a patent. Once the patent is issued, you can sue anyone who uses the invention without your permission for patent infringement in federal court.

You may want to file a provisional application before filing the more detailed patent application. The provisional application is simpler and protects your idea for one year, during which time you must file the standard application. This is also a smart route if you need more time to work on your idea.

Alternatives When an Invention Cannot Be Patented

If your idea falls into the category of non-patentable inventions, you may still have valuable protection options:

  • Copyrights – Protect artistic, literary, and software works against unauthorized copying.
  • Trademarks – Guard brand identifiers like names, logos, and slogans.
  • Trade secrets – Secure proprietary formulas, recipes, or methods by keeping them confidential.
  • Contracts and licensing – Use nondisclosure agreements (NDAs) or licensing arrangements to control access to and use of your innovation.

Selecting the right protection depends on the nature of the creation and your business goals. A legal professional can help evaluate which strategy offers the best safeguard.

Frequently Asked Questions

  1. What makes an invention non-patentable?
    Inventions are non-patentable if they fall into excluded categories like abstract ideas, laws of nature, natural phenomena, or mental processes.
  2. Can software be patented?
    Software may be patentable if tied to a novel, useful, and non-obvious process, but pure algorithms or code without technical application are not patentable.
  3. Why can’t medical procedures be patented?
    Many jurisdictions restrict patents on treatment methods to ensure healthcare remains accessible and not restricted by private rights.
  4. What alternatives exist if my invention isn’t patentable?
    You can explore copyrights, trademarks, trade secrets, and contractual protections such as NDAs or licensing agreements.
  5. Are patent laws the same worldwide?
    No, but many countries share similar exclusions. For example, India’s Patents Act and U.S. law both exclude mathematical methods, natural discoveries, and abstract ideas.

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