What Can Be Patented?

An invention can be patented if it has a useful purpose, has patentable subject matter, is novel, and is non-obvious. The patent could cover a composition, production process, machine, tool, new plant species, or an upgrade to an existing invention. Inventors must meet certain government guidelines to get a patent.

What Requirements Must a Person Satisfy to Get a Patent?

To get a patent, the person's invention must meet four requirements:

  • The invention must have a useful purpose.
  • The invention must meet the legal definition of "novel."
  • The invention can't be something that anyone could invent.
  • The invention must have patentable subject matter.

Government rules for patents ask certain things of the applicant. They need to show or describe the invention in a way that a patent officer can understand. They don't need a prototype to apply. An applicant can show proof of concept on paper.

What Does the Government List as "Patentable Subject Matter"?

The government has a group of subjects that it names as "patentable subject matter." These items include:

  • A new plant type that exists through asexual reproduction.
  • A new composition or formula.
  • A machine, usually one with moving parts or circuitry.
  • A process or method i.e. a new way of doing something better and/or more efficiently.
  • A simple tool or the like that can do something: Examples are things like pencils, hammers, screwdrivers, and baskets. All of them do a specific task. New tools have value and are patentable for that reason.

Examples of patentable items:

  • Business methods
  • Computer software
  • Computer hardware
  • Computer accessories
  • Games
  • Internet advances
  • Jewelry
  • Machines
  • Magic tricks
  • Makeup
  • Musical instruments
  • Perfumes
  • Plants
  • Sporting Goods

What's Not Eligible for a Patent?

The government won't patent an idea. It doesn't matter how revolutionary and creative that idea is.

In a way, every invention starts with an idea. Since you can't patent an idea, how do patents exist? The answer is that you have to get the idea down on paper. Sometimes, all you need to do is describe a process in words. Other times, you'll have to use drawings or computer renderings to prove your concept.

The government doesn't think of these writings and illustrations as ideas. Instead, it sees them as visual or verbal proof of concept. A prototype isn't necessary, but you must relay enough information about your idea to make it understandable to others.

Some things still aren't eligible for a patent. Examples include:

  • Mathematical formulas.
  • Laws of nature.
  • Substances found in nature: If you found a new type of lava, you couldn't patent its existence.
  • Scientific principles: Even Einstein, a patent clerk, couldn't get a patent for his scientific principles.
  • Processes involving only physical activity: These are things such as dance routines or band performances.
  • Surgical methods and procedures.
  • Drugs that place the user at safety risk.
  • Inventions whose purpose is criminal: This is a kind of morality clause enforced by the government.
  • Inventions whose existence violate existing scientific laws.

An exception exists. For mathematical formulas, you cannot get a patent. You can get one for a specific usage of the formula, though. This is another example of not patenting an idea while still being able to patent an explainable concept.

What Type of Invention Qualifies for a Utility Patent?

The government awards a utility patent if the invention is something new. It's the most valuable patent and has the nickname of the "patent for invention." This patent lasts for 20 years from the filing date and then becomes a part of the public domain.

A person can get a utility patent for:

  • A production process that leads to a specific result: Examples include cellphone applications, investment strategies, and e-commerce business solutions.
  • A tool or other result of the manufacturing process.
  • A composition of matter such as a shampoo product or an allergy medication.
  • A machine, usually one with moving parts and/or circuitry.
  • Any upgrade to an existing invention that falls under one of the four categories listed above.

Anything that qualifies for one of the steps above has met the lowest standard for a utility patent. The applicant must still prove that their invention has:

  • At least some level of usefulness to users.
  • Enough originality to stand apart from other inventions.
  • Some surprise: The government uses the term "non-obvious" as a standard that patentable items must reach. The invention must include some ability that the average person wouldn't think to do.

What Type of Invention Qualifies for a Design Patent?

A design patent is a patent for an item with a unique visual style. The government uses the word ornament as a standard that the applicant must meet. The new ornament must add a special design element that sets the item apart.

A design patent has less value than a utility patent. When you have both options, always try to get a utility patent. Alternately, apply for both a design patent and a utility patent. That way, you'll protect all aspects of your invention.

Design patents have a time limit of 14 years. After that, the special look of the invention goes into the public domain. Also, the patent only protects the physical appearance of the invention.

What Type of Invention Qualifies for a Plant Patent?

Plant patents are rare and specific. A botanist can file a claim to protect their creation of a new plant species. Plant patents last for 20 years.

To gain a plant patent, the person must prove that the plant is:

  • Novel
  • Non-obvious
  • Produced through asexual reproduction

What Makes an Invention Novel?

The novelty requirement is easy to understand. An applicant simply needs to show that no one has thought of the invention before. To check that an invention meets this standard, the applicant must check that:

  • No earlier patent exists.
  • The invention isn't already in the public domain.
  • No published applications of the invention exist.
  • No public versions of the invention exist.
  • The inventor cannot have sold an earlier version of the invention.

The government refers to these five standards in combination as "prior art." Any applicant who fails to meet the prior art test will not receive a patent.

A personal standard also exists in determining prior art. To pass the test, the inventor cannot:

  • Disclose any information about the invention more than a year before the application.
  • Have a joint inventor who finds out about the disclosure more than a year before the application.

The inventor should focus their application description on how their product differs. That's the key issue in establishing novelty. What matters most is that the invention is new and better than other inventions.

What Is the Utility Requirement?

A utility patent invention must do something. The government wants to see that the invention works or produces an outcome. Whether that result is a manufactured item or a predicted result, the invention has to work.

To the USPTO, an invention has utility when it has a benefit to people or helps someone finish specific tasks. The bar is low for this standard. Even humorous items like mounted fish that sing qualify as useful.

Note that the invention technically has to work. The inventor only has to prove this in theory, though. Unlike design or plant patents, the utility patent doesn't require immediate proof.

Most inventions pass the utility test. It's an easy part of the application process. Any applicant who cannot clear this standard shouldn't bother filing.

Only a utility patent must meet the utility requirement. Plant and design patents don't need to show utility.

What Does the Government Consider Non-obvious?

The government asks that all patents are non-obvious. The invention must:

  • Be something that a person in the field would not otherwise notice.
  • Require an inventive step.
  • Seem unexpected or surprising to someone in the field.

This standard is difficult to meet because the decision is subjective. One person might call an invention non-obvious while someone else might say that it is obvious. The applicant can only guess what the patent officer will think.

The other issue is that the determination of non-obvious happens well after the fact. What seemed non-obivious at the time of the invention may look different a couple of years later when the application ruling occurs. The delays in the patent process add complexity to the non-obvious test.

A good examiner can avoid the issue by focusing on prior art references exclusively. This is the data that existed when the invention occurred. 

Here's an example. Let's say that someone invents a transportation systems that can take someone to Mars overnight. It's a historic breakthrough in space travel that will probably have applications on Earth travel, too. Today, this breakthrough would seem amazing, which the USPTO would call non-obvious.

Six years from now, space travel could seem as ordinary as driving a car. The patent office employee who judged the patent on that day would have a much different point of view than someone looking at it in the past. A patent officer who relied on prior art would appreciate that change in perception.

Meanwhile, someone who used a new material to build a boat wouldn't pass the non-obvious test. The USPTO assumes that every new material will have useful applications for many existing patents.

Getting a patent is difficult. You need to find out if a similar patent or public domain invention exists. You also must decide what kind of patent you can get. To improve your chances of getting a patent, you should hire a patent attorney. Post your job on the UpCounsel website to find a lawyer who can help you.