What is patentable invention? For an invention to be eligible for patent protection from the United States Patent and Trademark Office (USPTO), it must fulfill certain criteria. The most common type of patent is for manufactured items, material compositions, machines, and processes. The invention must be new, non-obvious, and useful. Because the patent process application involves an investment of countless hours and tens of thousands of dollars, it's important to make sure your invention can actually be patented before taking that route.

What Can Be Patented?

As mentioned above, the categories of inventions that can qualify for a utility patent include:

  • Sequences of steps (processes), including computer programs
  • Material compositions such as combinations of chemicals, foods, and living organisms
  • Machines, which can be as simple as an umbrella or as complex as a robot
  • Manufactured products made from raw materials

Some inventions may fit into more than one category. For example, a new type of metal alloy could theoretically receive a patent for the process used to make it, the alloy itself, and a machine it is used to make.

Often, a patent is granted for a component of an invention rather than the total invention. For example, almost every part of a vehicle is covered by a separate patent. The full product is only described in such an application if the patented element solves a specific problem with that product or is designed to work only with that product.

Can My Invention Be Patented?

To determine whether your invention may qualify for a patent, ask the following questions.

  • Is the invention new? To be eligible for a patent, your invention must be different than anything else that is currently sold to the public, written or published about, or patented. You may want to hire a patent agent to conduct a prior art search. This means that the agent will review patents, inventions, and published works in your field to determine whether your invention is truly new.
  • Does the invention have utility? If your invention doesn't have a specific use, it cannot be patented. This is usually the easiest test for the invention to pass since most products are created to benefit the public or a specific industry. Under this test, items that do not qualify for patent protection include abstract ideas, natural discoveries, and natural phenomenon. As part of the prior art search, your patent agent can find supporting documentation about how your product solves a problem or fulfills a need that has not yet been addressed by other inventions.
  • Is the invention non-obvious? The subjective nature of this characteristic makes it the most challenging to fulfill. When determining whether your invention is obvious, the USPTO will consider whether a person having ordinary skill in the industry would easily be able to think of a similar creation. To fulfill the non-obviousness requirement, the invention must produce a significantly new result compared to previous inventions.

What Other Types of Patents Are Available?

Design patents protect the appearance of an object only. For this reason, some objects are covered by both design and utility patents. One example is Apple's iMac computer, which had a unique design that was patented separately from the internal components.

A plant patent protects a new type of discovered and asexually reproduced plant. It is not valid for an uncultivated or tuber-propagated plant. With the patent, others are not allowed to use, asexually reproduce, or sell the plant.

Artistic works, such as paintings, music, or books, are not protected by patents but by copyrights. Proprietary and confidential information can receive trade secret protection.

These types of patents, along with the utility patent, are recognized in many nations including the United States. However, some nations have their own exclusive patent laws.

Certain items cannot be patented even if they meet all the criteria. For example, nuclear weapons technology and related inventions cannot be patented under the Atomic Energy Act of 1954. That's because a patent application requires the disclosure of the invention. The U.S. doesn't want other nations to have access to this dangerous technology once the patent term (usually 20 years) expires.

If you need help with determining whether your invention is patentable, 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, Stripe, and Twilio.