Can You Patent Something Illegal?

Rich Goldstein

Founder & Principal Patent Attorney
A female lawyer wearing a gray coat is sitting beside two female lawyers while looking at the silver monitor on a brown wooden table

In intellectual property, patents serve as powerful shields protecting inventors’ rights and innovations. At Goldstein Patent Law, a potential patent holder like yourself may ask us many complex questions. Some inventors ask us: can you patent something illegal?

Delving into this murky territory can unravel a web of complexities, leaving innovators and entrepreneurs uncertain. This article explores the intriguing and often contentious topic of patenting illegal inventions, shedding light on the legal ramifications that demand our attention.

Can You Patent Something Illegal?

No, you cannot patent something illegal. While you argue that, generally speaking, anything under the sun can be patented, to qualify for a patent, you must meet specific patent requirements for your claimed invention. Most importantly, the invention must be a “patentable subject matter.”

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According to the patent and trademark office, to be granted a patent, your invention must be part of one of the following categories of subject matter:

  • Processes
  • Machines
  • Manufacturers
  • Compositions of matter

According to the patent and trademark office, “if a claim covers material not found in any of the four statutory categories, that claim falls outside the plainly expressed scope even if the subject matter is otherwise new and useful.” First and foremost, if your invention is illegal and does not fit into those four categories, it will be denied a patent. If it does fit into one of those four categories, there may be a case for you to be granted a patent.

When Can Something Illegal Be Granted a Patent?

In some cases, you can be granted a design or utility patent for an invention that is used for an illegal purpose or using an illegal substance. In this case, the patent applications need to be written broadly during the patenting processes to extend the invention’s purpose to legal or legitimate activities.

For example, a novel, helpful smoking pipe might be granted a design or utility patent, even if most consumers use it for substances other than legal tobacco. While the trademark office constantly reviews applications carefully, there are precedents that suggest this is possible.

Any investor who feels they are the first to create new methods to do everyday things should know they have the right to seek a patent. As an investor, you are always free to consult with a lawyer if you feel you’ve created something patentable, even if you’re unsure if it’s illegal.

Read on to learn more about patentable inventions, guidelines from the Patent and Trademark Office, patent applications, and what to expect when working with a lawyer. Then, book your free strategy call with Goldstein Patent Law to get started.

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Why Can’t I Patent Something Illegal?

In most countries, there’s a common rule: you can’t get a patent for something that goes against the law, because laws are established to keep the general public safe. No matter the country,  “against the law” means anything illegal according to relevant laws, regulations, ordinances, or established legal precedents.

Some countries outline similar laws for what can and cannot be patented. For example, human beings and processes involved in creating human beings are generally excluded from patent protection. Since patentability varies in some countries, some inventors can patent technology that pushes those boundaries.

In recent years, there have been discussions in some countries about expanding the prohibitions on patenting inventions that are offensive or against the public interest. The goal is to welcome more inventors and ideas to be patented. However, we have yet to see these laws change in around twenty years.

For example, with the increasing acceptance of marijuana for medicinal purposes in various countries, inventions related to its production or enhancing its properties may become eligible for patent protection.

What Intellectual Property Can and Can’t Be Patented?

Particular inventions have been deemed unpatentable due to their unethical nature. For instance, a patent application involving the creation of hybrid embryos by combining human and animal cells would likely be rejected. Similarly, an invention designed to cause harm, such as a safe that explodes to injure a burglar, would not be granted patent protection.

Certain kinds of intellectual property cannot be patented when it comes to patents. One example is physical phenomena, which are natural products of nature. If your invention can occur naturally in the world, it cannot be patented, no matter the method by which you invented it.

To get a patent, an invention needs to be:

Every patented invention has met these requirements. Suppose you created something used for an illegal purpose, but are interested in submitting patent applications with the patent office. In that case, you contact a lawyer at Goldstein Patent Law for a consultation. The specific form of the invention, the details on your patent application, and your local jurisdiction all come into play when seeking a patent. Our team can help make sense of it all.

Can You Get a Patent for Something Dangerous?

If your inventions are related to national security, the patent applications may be classified (kept secret) yet still granted patents. The Atomic Energy Act states that atomic weapons and any other invention deemed a threat to national security at large cannot be patented. Similarly, you can not get a patent for medical treatment or interventions that knowingly harm or injure others.

The government can take ownership of a patent if it is in the public’s best interest because it is dangerous. This is made possible through the principle of eminent domain.

In simple terms, an inventor may still be able to get a patent for something even if it is dangerous, used for an illegal act, or it involves an illegal substance. While the invention might have illegal applications in some contexts, it can still be protected by a patent that includes legal applications.

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How Does a Lawyer Help With the Patent Process?

At Goldstein Patent Law, we’re legal experts who understand the rules and laws related to patents. We guide inventors through the applicant process, which involves filling out necessary forms, writing detailed descriptions of the invention, and submitting the application to the patent office. We also help you, as the applicant, to conduct research to ensure no one else has already patented a similar invention anywhere else.

Patent protection is essential, so we take time and ensure the process goes as smoothly as possible. Without a lawyer’s help, you risk making a costly mistake on your application or failing to submit all the necessary documentation.

Why Is It Important to Work With an Intellectual Property Lawyer?

The methods by which an invention is described in a patent application can impact its patentability. The patent office is very scrutinous when accepting and rejecting patentable applications. Patent applications for illegal inventions or inventions with illegal applications must dance a fine line between being broad and precise, as the language on these patent applications is essential in deciding whether or not the invention is lawful and ethical.

By describing an invention in a manner that highlights its lawful applications,  it may have a better chance of being patented. A lawyer can help get patent protection by guiding you through the patenting application process and writing it out for you.

Plus, while a lawyer helps the inventor protect their ideas and navigate the legal aspects of getting a patent, the inventor can focus on their creativity, innovation, and inspiration. Our lawyers know your inventions take priority, so we handle the leg work.

Conclusion

Are you interested in the patent process? Getting a United States patent is a complex process, but with the help of a lawyer, obtaining patents for qualifying inventions can be made much more straightforward.

When you’re ready to become a patent holder, or if you have an idea and want to explore whether it can be patented, it’s a good idea to consult with a patent attorney. They can guide you through patent applications and becoming a patent holder to help you understand the best way to obtain this protection.

At Goldstein Patent Law, we offer a free strategy call to discuss your invention and answer patent-related questions. Schedule your free call today to take the next step in protecting your invention.

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