Patentable: What Is It?

Patentable items include new products, processes, and ideas for a utility patent; existing ideas featuring new designs for a design patent; and genetically designed plants for a plant patent.

A person or business can earn a patent in many fields of innovation. Governments want to reward inventors. They use patents to encourage innovation and creativity.

What Are the Main Categories for Patents?

Do you have an idea or innovation you believe is worthy of a patent? Ask yourself if it falls into one of these groups:

  • Plant Patent: This is the rarest type of patent. Unless you're a botanist, you're unlikely to get one. These patents are for special plants that a person can reproduce asexually. Once the person owns the patent, he or she can decide if and when others can reproduce the plant. It's a powerful patent in scope but the rarest kind. The plant patent lasts for 20 years.
  • Utility Patent: An inventor receives this desirable patent for creating a new item or process. When a person proves that something is useful, he or she might receive the utility patent. It gives the inventor control of the invention. No one else can use it for a set time unless the owner allows it. Utility patents last for 20 years from their date of the application. Once the patent expires, the innovation enters the public domain.
  • Design Patent: An inventor who adds a distinctive element to a manufactured item might qualify for a design patent. The inventor must introduce an ornamental feature or create an entirely new design. Note that some products qualify for design patents as well as utility patents. A good example is an Apple product. Many of them have distinctive appearances and designs. They also include new technologies. The design patent would cover the ornamental elements. The utility patent is for the original technologies. Design patents last 14 years, but they cover only the item's appearance.

Who Decides What Is Patentable?

The United States government has always supported innovation. Most other countries write laws the same way. A quality invention can add many jobs to a society. It can also increase revenue.

For example, the Google search engine bar is an invention that led to one of the two most successful companies in the world. In 2016, Google estimates it added $222 billion to the American economy. Without patents protecting the company's innovations, Google wouldn't have the same positive impact on the economy.

The framers of the American Constitution anticipated the importance of intellectual property. Article I, Section 8 of the Constitution protects intellectual property rights.

The federal government created the U.S. Patent and Trademark Office (USPTO) to give patents and trademarks to inventors. Other countries have their own patent assignment agencies.

International governments even work with one another to speed up the patenting process. The Patent Prosecution Highway is several countries' joint effort to award patents faster.

This aspect is important because an idea's utility exists beyond borders. Once an inventor gets a favorable patent ruling in one country, he or she can petition others for a faster ruling.

Some countries will not patent certain things. For instance, some do not allow pharmaceutical products or inventions used to make atomic weapons to get patents.

What Defines Patentable Innovation?

A patent is available to innovations in many fields. These include:

  • Compounds
  • Compositions of Matter
  • Machinery
  • Manufactured Goods
  • Processes

A patent applicant must prove that the work is either original or a useful improvement on something else. In other words, a second patent is possible for something that already exists. The applicant must show that the enhancement adds new utility. That's why multiple types of patents are available.

An innovation must meet several criteria to earn a patent. The three major factors are:

  • Novelty: An inventor must prove an invention's newness. Anything that was previously available for sale or use doesn't qualify. Also, anything already known cannot by definition qualify as new.
  • Utility: Creating something new isn't enough to earn a patent. The invention must have utility. The patent office will ask for proof that the new innovation has value of some kind.
  • Non-Obvious: This term refers to a standard held by the patent office. An innovation must have a design that a layperson in the field doesn't already know. Something obvious cannot qualify as an innovation. So, an inventor must prove the non-obvious standard. This is the most difficult hurdle for many patent applicants. The USPTO examines "prior art" to see whether the innovation offers a true advancement in its field. The USPTO will base this analysis on what a layperson would have thought on the day of the application. One of the problems in clearing this hurdle is that deciding what someone would have thought years earlier is a judgment call. Something that will help the application's argument is if the product enjoys high sales. The USPTO views this as a sign that the product was original.
  • Undisclosed: Inventor should not write about their innovations before creating them. The USPTO often rules against patents if the innovation was disclosed before the application. By writing about it before applying, the inventor made it subject to public knowledge.

The three requirements for undisclosed are that the innovation isn't:

  • For public use
  • Previously on sale
  • Printed in a publication more than one year prior to the application date

Which Subject Matter Is Patentable?

An applicant can receive a patent in categories such as:

  • Business processes
  • Computer software that has a "useful, concrete, and tangible" purpose
  • Computer hardware
  • Electronics
  • Fabrics and fabric-based design
  • Human genes that meet certain scientific requirements
  • Manmade but not naturally occurring bacteria
  • Medicine
  • Sporting equipment

Is an Idea Patentable?

A person cannot patent an idea. Instead, the inventor must give the idea physical form. When someone patents a process, the inventor must show a functioning version of it. Writing down the idea on paper qualifies in some instances.

Some innovations are not eligible for patents. A mathematical proof is a good example. The USPTO will not grant a patent for one, even though mathematicians continue to petition for the right.

Other examples of ineligible innovations are:

  • Abstract ideas: An inventor must be able to explain the concept in a way that others would understand. Otherwise, the utility is impossible to prove.
  • Laws of nature: A person cannot patent something like a previous unknown weather event or a variation on the law of gravity. Laws of nature exist and are events that anyone who sees them can understand. For that reason, they aren't eligible for patents.
  • Machines that violate the laws of nature: This requirement is one of the most difficult to understand. It doesn't fit under the abstract idea umbrella because the idea does work in a provable way. Because it violates our understanding of the laws of nature, it's still not something that a person can patent. The most famous current example of this issue is the EM Drive, which violates Newton's Third Law of Motion. The inventor of this device, Roger Shawyer, has yet to get a patent for his groundbreaking technology. He has tried repeatedly, making a new request after each alteration to the original design.
  • Materials found in nature: The same rule applies to natural materials as laws of nature. A person might discover a new rare mineral that has great value and utility. While he or she can sell this item, it's impossible to patent. It's not something a person created.
  • Physical actions: A person might discover the perfect free-throwing shooting technique or a throwing motion that maximizes velocity for a baseball throw. While these actions have value, neither is eligible for a patent. This rule also includes dance routines.

How Does Patent Law Differ in Other Countries?

Each country has its own rules and guidelines for patents. For example, the United States allows the patenting of computer software, certain plants, and even some previously unknown animals. Many other countries don't have these patents. They do have copyrights and registered designs to protect the inventors, though.

Many countries in Europe have updated their patent laws in recent years. The goal is to adapt to innovations faster. Knowledge-based fields such as software development and biotechnology now have a faster track to patents.

Biological material also has an easier path. The recent changes allow the patenting of biological material even if it falls into the category of previously occurring in nature.

In Europe, human genes and other innovations inside the human body are not eligible for patents. An innovator can patent a computer program when it meets certain conditions. The product must add technical features beyond the simple interaction that occurs each time a user runs a program. In other words, the software must do something beyond the normal process of hardware interacting with a program.

Do you need help patenting something? Getting a patent could earn you a lot of money over time. To handle your patent application correctly, post your legal need on UpCounsel's marketplace. Many of these well-qualified attorneys have lots of experience with patent applications and laws.