Many of us have been in conversations where someone shares a great idea and another person immediately responds with, “Oh, you should totally get a patent on that!” But is it really patentable?
Patents protect inventors’ or patent owners’ interests by giving them exclusive rights to exclude others from making, using, selling, or importing the patented invention for a set period. It’s important to note that a patent confers a negative right; it does not give the patentholder the right to make, use, or sell his or her own invention.
If an individual or entity wants to seek protection for an innovation, they may want to file a patent application. However, not everything can be patented. Knowing these limits and restrictions is essential to working through the patent process.
What Can Be Patented?
The United States Patent and Trademark Office (USPTO) issues three types of patents: utility, design, and plant patents.
- Utility patents are issued for new processes, machines, manufactured products, and compositions of matter. Utility patents are the most common type of issued patent, according to the USPTO.
- Design patents are for new and original ornamental designs for manufactured products. Design patents apply specifically to a product’s non-functional appearance.
- Plant patents give exclusive rights for new varieties of asexually reproduced plants and their parts. These can include hybrids and genetically modified plants, for example.
The USPTO establishes four key conditions for a specific invention to be patentable:
- The invention must meet the statutory requirements.
- The invention must be useful.
- The invention must be new or novel.
- The invention must be non-obvious.
These conditions are fairly broad and include a wide range of inventions, such as:
- a new consumer electronic device;
- machines and inserts for making beverages;
- an adhesive formulation;
- a multilayer fibrous material for providing cushioning and moisture management;
- novel chemical compounds or substances;
- the design, components, or combinations of components of a new automobile engine;
- computer software (sometimes!) and hardware;
- a novel industrial process for producing plastics;
- the shape and visual appearance of a specific chair; and
- a new variety of genetically modified algae.
Things That Cannot Be Patented
Anything that falls outside the statutory requirements for utility, design, or plant patents is ineligible for a patent in the United States.
Courts have also dictated several judicial exceptions to patentability, most notably abstract ideas, laws of nature, and natural phenomena. These types of judicial exceptions exist to protect the basic tools of science and promote research and innovation.
Specific examples of nonpatentable things include, but are not limited to:
- a scientific theory describing a natural process or phenomenon;
- a mathematical equation or theorem;
- literary, dramatic, or musical creations and other artistic works;
- the genome (DNA) of a naturally occurring organism or species; and
- an abstract method of organizing or presenting information.
When determining patent subject matter eligibility, the USPTO asks two primary questions:
- Does the creation fall within one of the statutory categories for patent eligibility (i.e., process, machine, manufacture, or composition of matter)?
- Does the creation fall outside of any judicial exceptions?
If the answer to both of these questions is yes, the subject matter is eligible for a patent (though a patent is not guaranteed). Note that, although judicial exceptions themselves do not qualify for patents, applications of judicial exceptions in specific processes may be patentable.
However, even if something cannot be patented in the United States, it does not mean it cannot be protected under another aspect of intellectual property law, such as trademark or copyright law. For example, books and movies fall under copyright law. A logo or a slogan could, perhaps, be protected with a trademark.