What Is Patentability?

Patentability is part of how to patent an idea and consists of three main requirements or criteria under United States patent laws. The invention must be:

  • Novel
  • Non-obvious
  • Useful


Novel means the invention must be new, but it is often more complex than that. No other patent issued throughout the world can have previously described it. Also, no kind of any printed publication can have described it. If the invention is known in the U.S., even without a patent or in a published document that describes it, patentability is not there. Patent laws go into more detail about the art references to the invention.

Further rules and restrictions around the novel criteria include any items related to the invention for sale in the U.S. They also restrict patentability for public use of the item more than 12 months before the request to get a patent.

Proving that an invention is novel is one of the hardest parts of getting approval for a patent. To do so, the applicant must describe the novelty of the complete invention in one document. When applying for a patent in Europe, many people notice the novel requirement is even stricter. The application refers to "inventive steps," which help offer a solution to an existing technical problem. But without a technical problem, the invention doesn't include an inventive step.


The non-obvious clause requires that the invention not be obvious to an ordinary person. This person would have a standard set of skills in the industry or field relating to the invention. It's hard to classify exactly what makes someone ordinary or what forms a standard skill set. When you're making your case for why your invention is patentable, this is typically the hardest criterion to meet.


The useful requirement means the invention must have a purpose that is useful or solves a problem. It's easier to meet this criterion in technology and electronic patents. But it tends to become more complex in pharmaceuticals, chemical compounds, and other similar areas.

You may also hear a reference to something being patent eligible, which is different from being patentable. If the invention is patent eligible, that usually means it falls within the U.S. patent law categories, so you can consider obtaining a patent. Patentability goes deeper into the laws and individual requirements. It ensures the invention meets each of these and is truly eligible for patent protection.

A statute within the patent laws includes four types of inventions that qualify for patent protection. They are:

  • Compositions of matter
  • Machines
  • Processes
  • Articles of manufacture

The Patent Act, passed in 1952, further clarifies that any patentable subject matter should include anything man-made. Through many different cases, the United States Supreme Court consistently refers to three subject categories that are not patentable. The three categories are:

  • Laws of nature
  • Natural phenomena
  • Abstract ideas

Types of Patents

Patents further break down into three legal classes:

  • Utility Patent: valid for 20 years from the date it's issued. It includes just about any type of invention, such as devices, machines, chemical compounds, processes, formulas, and manufactured items.
  • Design Patent: lasts for 14 years and protects the appearance of the invention or item. It only covers the design for something that you produce. It includes a new and original or ornamentally improved design. 
  • Plant Patent: covers a new type of plant variety you invent or discover. You must be able to reproduce the plant asexually. This patent lasts for at least 20 years.

Why Is Patentability Important?

Patentability helps to protect an idea or invention from others across the country copying it. It's important to obtain a patent to prevent theft of your idea by a bigger organization. This type of company may have the resources to produce the item on a larger scale and at a lower cost.


The deadline for patentability is one year from the time you publicly disclose your invention for the first time. Publicly disclosing includes selling the item, publishing information about it in a journal or other publication, or displaying it at a trade show.

If you can't get the information together to file for a patent within the 12-month time frame, you can request a provisional patent. This extends the deadline by 12 months, giving you an extra year to raise the funds or make any needed changes to the product to improve patentability.

Other countries do not offer the one-year grace period for filing for patent protection. It's best to file a patent application before you disclose the invention in a public way.

What Could Happen When You File for a Patent?

There are several things that may happen when you examine if your idea is patentable.

  • It may not meet the eligibility requirements for patent protection, resulting in a lack of patentability.
  • You may find you need to make some changes to your invention or product for it to be patentable.
  • You may find that your invention already exists in another capacity, so it's not eligible for a patent.

If your invention falls under the last two options, it's important to understand why it's not patentable and to make appropriate changes. Some inventors find they patent their ideas too early, resulting in a limited-scope patent that doesn't offer much protection.

You may also find that applying for a U.S.-only patent won't cover the broad scope you want. A global patent further protects your idea across the entire world.

What Could Happen When You Don't File for a Patent?

If your idea is novel, non-obvious, and useful, it's important to prevent copying by filing for a patent. Without one, you won't hold exclusive rights to it anymore, so it may not be worth much. You also risk losing the chance to sell or license your invention, dropping your position in the industry or market where your invention applies. You could also lose out on earning back the money you invested in developing your product.

Without a patent, your idea is fair game for anyone who wants to create a similar product or even one that is the same. If you have a company, the organization's public image and perception may be lower because your idea isn't unique and innovative anymore.

Common Mistakes

When determining if the item is novel, inventors who are unsure of their idea's patentability make the common mistake of relying too heavily on the internet. Performing an extensive search online is important, and it should be one of the first steps you take but not the only one. Search engines often won't find information on existing patents. Even if you do come across one that seems similar, it's hard to know for sure just how similar it is to yours.

Online searches may also cause you to change your view of the original idea, even on a subconscious level. If you read a patent for an idea that is somewhat similar to yours, you may find the things you read filter your idea's plan and execution. As a result, your idea may no longer be patentable because it's too similar to the item protected under the patent you read online.

Another common mistake made by inventors relates to the time of filing. As mentioned, you only have a year to file, but acting too quickly is also a mistake. It's important to take the time to make sure your patentability won't become so limited that it's virtually useless. For example, if you plan to patent a new type of fabric for exercise clothing, you won't want to patent just the exercise shorts. If you do, this leaves shirts, socks, pants, and other clothing items out of the equation.

Frequently Asked Questions

  • What makes an idea patentable?

An invention or idea is patentable if it is novel, non-obvious, and useful.

Utility patents are the most generic and granted to new, useful inventions. They apply to just about anything that can be made and stay valid for 20 years. After the 20-year period, the patent becomes public property. 

  • How quickly do I need to file for a patent?

Once you showcase your product or idea in any form, you have 12 months to file for a patent. One loophole is filing for a provisional patent, which extends the deadline by another 12 months.

Steps to File

1. Fill out an application

A formal application contains several required sections, including a short summary of the idea, drawings of the invention, a more detailed description, and the advantages of the product. It should also include claims that define the legal scope and boundaries of your invention.

2. Prepare to fight

Most patentable ideas still receive denials during the patent process. If your application doesn't go through, you should enlist the help of a patent attorney who better understands the requirements. He or she can tell you what changes to make to improve your chances.

3. Decide if you want it published

Most patent applications are published within 18 months of the filing date. If you don't want yours published, you have to request this during the application process.

Patentability is complex because there are several subjective factors that are hard to fight. However, if your idea is novel, non-obvious, and useful, it's worth looking into its patentability to protect yourself and your opportunities with the item in the future.

If you have additional questions about patentability, the lawyers at UpCounsel's marketplace will find the answers for you. They have graduated from law schools such as Harvard Law and Yale Law. Let them assist you today.