Requirements for patent protection are established by the United States Patent and Trademark Office (USPTO). Such requirements include that the invention in question must be new, not obvious, and useful, as well as that the inventor discloses the invention to the public in exchange for patent protection. These protections include the exclusive right to use, sell, make, or import the patented invention for a specific number of years and the ability to seek legal retribution if another individual or business attempts to profit from the invention.

It's important for inventors to understand when their creations are eligible for patent protection.

Elements of Patent Eligibility

According to the USPTO, to qualify for patent protection an invention must include five key characteristics. 

  • It must consist of a new and useful machine, process, manufactured object, or material composition. Laws of nature are not patentable. 
  • The invention must be new (novel).
  • The invention must be non-obvious, which means that it can't be a natural extension of an invention that already has patent protection. 
  • The invention must be disclosed in the patent application and cannot have been described in a previous publication.
  • If you're applying for a utility patent, the invention must be useful.

Types of Patents

Patents are typically categorized as either design, utility, or plant patents. Utility patents are by far the most common kind. This type of patent protects:

  • Business processes
  • Engineering methods
  • Software
  • Machines 
  • Manufactured goods
  • Pharmaceuticals
  • Genetic creations
  • Chemical compounds and other material compositions

A utility patent provides the broadest available patent protection for 20 years from the filing date but is the most difficult type of patent to obtain.

Design patents do not have to prove utility; in fact, they are granted only to new designs that are purely decorative and not those that have a function. These patents last 14 years and offer narrower protection than utility patents but are easier to obtain. A design can often qualify for a patent unless it is identical to an existing design.

Plant patents provide protection for plant seeds that sexually and asexually reproduce, such as new plants and plant seeds that result from experimentation. This is the rarest type of patent and lasts for 17 years. 

Determining Whether an Invention Should Be Patented

It's important for inventors to understand the benefits and costs of filing for a patent before taking this step. Applying for a patent typically takes between three and five years and requires substantial consulting and legal fees. For this reason, you should analyze whether the benefits of having the sole rights to distribute and profit from your invention outweigh the significant costs of prosecuting those who may infringe upon your patent. 

In some cases, you may be able to protect your invention in another way. It might qualify for protection under state trade secret laws, for example. Questions to ask when analyzing the costs and benefits of patent protection include:

  • What is the invention's estimated market value?
  • How much will you pay out of pocket to register the patent?
  • How much will you need to spend for adjusting your invention as well as marketing and advertising costs? 
  • How much does the invention diverge from existing technology? If it is very similar to something that already exists, it likely will not qualify for patent protection. 
  • Will the invention still have market value after the five years it takes to register the patent? 

You must file a patent application within a year of publicizing the invention, which can substantially limit the extent of market research and testing you can do. Before hiring a patent attorney, you should make sure you thoroughly research and test the product and take careful notes that contain the date you thought of the invention, the date you began to develop it, the date you began to test it, and the research and testing process you used. It should also include testimony from independent witnesses to this process. 

You should also do a search through the USPTO to determine what similar patents have been issued in your field, a concept known as prior art. 

If you need help with determining whether you should patent your invention or completing the patent application process, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.