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What Is Patentable?

What kinds of inventions can be patented?

There are three main classes of patents - utility patents, design patents, and plant patents.

  • Utility Patents
  • Under federal statute, any person who "invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent." A "process" is defined as a process, act, or method, of doing or making something, and primarily includes industrial and technical processes. Machine includes anything commonly considered a mechanized item, from a clock to a tractor to a computer. The term manufacture refers to articles which are made, and includes all manufactured products. A "composition of matter" is a chemical composition, and may include mixtures of ingredients as well as new chemical compounds. These classes of subject matter, taken together, include practically everything that is made and their production processes.
  • Design Patents
  • A "design patent" protects the way a product looks. Since most manufactured items possess both functional and ornamental characteristics, both utility and design patents may be required to protect the invention. For example, Apple Computers introduced a unique, decorative computer called an iMac, which featured a curved case incorporating the CPU, drives, and monitor, and which was made of white translucent plastic and colored transparent plastic. While various aspects of the computer itself may have already been patented, the design characteristics, which are wholly separate from the iMac's function, were themselves patentable.
  • Plant Patents
  • A plant patent may be granted when a new variety of plant is discovered and asexually reproduced. This does not include a tuber-propagated plant or a plant simply found in an uncultivated state. The patent protects the inventor's right to exclude others from asexually reproducing, selling, or using the patented plant.

How does the government decide what inventions are patentable?

An item can be patented if it is "useful," "novel," and "nonobvious."

  • "Useful"
  • The term "useful" means that the subject matter has a useful purpose. It also requires that the item is operable, since a machine that cannot perform its intended purpose cannot be considered useful in the ordinary sense of the word.
  • "Novelty"
  • "Novelty" is strictly defined by patent law. An invention cannot be patented if:
  • The invention was known or used by others in the United States before the patent applicant invented it.
  • The invention was patented or described in any printed publication, in the United States, before the patent applicant invented it.
  • The invention was patented or described in a printed publication in any country more than one year prior to the inventor's U.S. patent application.
  • The invention was in public use or for sale in the United States more than one year prior to the inventor's U.S. patent application.
  • The applicant abandoned the invention.
  • The applicant patented the invention in a foreign country on an application filed more than twelve months before filing a corresponding U.S. application.
  • The invention was described in a U.S. patent granted to someone else before the applicant made the invention.
  • The applicant did not invent the subject matter that they want to patent.
  • Before the applicant's invention, someone else made the invention in the U.S. and did not abandon, conceal or suppress it.

However, these rules do not prevent a person from patenting an improvement to another invention. For example, tire makers have long known the formulas for making tire rubber. But what if an inventor found a way to make tire rubber twice as long lasting by slightly changing the chemical composition? This could be a patentable improvement as long as the improvement met the useful and nonobvious standards.

  • Nonobviousness
  • Even if a new invention differs in one or more ways from another patented invention, a patent may still be refused if the differences would be obvious. Nonobviousness is defined as a sufficient difference from what has been used or described previously that a person having ordinary skill in the area of technology related to the invention would not find it obvious to make the change. For example, sodium chloride (table salt) and potassium chloride (a very chemically similar salt) can often be used interchangeably. A chemist working to improve road salt would consider it obvious to substitute potassium chloride for sodium chloride, and therefore, a formula that simply made this substitution in an already patented road salt formula would not be patentable.

What types of products are ineligible for patent protection?

Various countries will not patent certain types of inventions. For example, the Atomic Energy Act of 1954 excludes the patenting of inventions that are useful exclusively when using special nuclear material or atomic energy for atomic weapons. The reason for this was simple; to patent an invention, the means of making the invention must be disclosed to the world in sufficient detail that others could duplicate it by following the directions. The United States did not want its nuclear technology, especially weapons technology, to be accessible across the world. Another major exclusion in some foreign countries is pharmaceutical products. Certain nations consider it immoral to patent medicines, because patenting pharmaceuticals sometimes has the effect of making them more expensive and less available to sick people.

What is simply unpatentable?

Laws of nature, physical phenomena, and abstract ideas are not patentable subject matter. Mechanisms which are considered simply impossible, such as perpetual motion machines, are also unpatentable.

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

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