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What Can Be Patented And What Cannot?

Rich Goldstein

Founder & Principal Patent Attorney
Hand drawing on paper with pencil

It stands to reason that the most common question we’re asked at Goldstein Patent Law is: “Can this type of thing be patented?”

The answer to that question depends on whether your invention or product idea meets the three criteria for patentability that the United States Patent and Trademark Office (USPTO) examiner looks at when evaluating a patent application: 

  1. Patentable subject matter
  2. Novelty, and 
  3. Non-obviousness

This article dives deeper into “patentable subject matter” and what qualifies as such. 

“Patentable subject matter” is a legal term that means simply, the types of products or ideas that can be patented. And the question, “Is what I have patentable subject matter?” is called a threshold question because, while there are other requirements for patentability, the question of whether there is patentable subject matter is the first one that must be considered when seeking a utility patent. Any idea must first be found to be patentable subject matter.


Four Main Categories of Patentable Subject Matter

There are four main bucket categories of patentable areas:

1. Machine: a functional item that consists of parts that interact. Generally, it has moving parts.

2. Manufacture: an object that might lack moving parts, yet provides a function. For example: a shovel lacks moving parts but its shape allows it to perform a function.

3. Composition of Matter: a combination of chemicals. For example, a hair care product, a pharmaceutical, or a cleaning product that consists of a combination of ingredients.

4. Process: a set of steps for doing something. This category traditionally has been used to protect methods of manufacturing, but more recently has become the category used to protect business methods and computer software.

These categories were created long ago, but most physical and functional inventions will still fit at least one of the first three categories. The last category (Process) has been the subject of much of debate in recent years. Several major cases have been decided by the U.S. Supreme Court in an attempt to clarify what “processes” qualify for patent protection. For this reason alone, in many cases, you need someone experienced and qualified to make the best determination as to whether your business model or process may qualify as patentable subject matter.

For all of these patentable categories, the underlying invention must be useful. This means the underlying invention has a useful purpose and is operable. Whether an invention is useful can be somewhat subjective, but the USPTO has issued guidelines that are helpful in this determination. 

Generally, there only needs to be one credible assertion of utility for an invention to be classified as useful, Moreover, an invention will be useful so long as a person of ordinary skill in the underlying field would recognize the invention as useful. 

If you think your product or invention falls into one of the above, then it’s important that you have a professional evaluation conducted to see if your invention meets the other two requirements for patentability: Novelty and Non-obviousness.

Briefly, to qualify as novel means your invention must be different from anything else that has been previously patented, sold, or otherwise available for public consumption. 

For your invention to be non-obvious, there must be a sufficient difference between what has been previously described and used in the field such that a person with ordinary skill in the field related to the invention would not find it obvious to make the underlying change. 

What Cannot Be Patented

On the flip side, there are also inventions and ideas that cannot be patented. For example, laws of nature cannot be patented. Articles that are contrary to the public good also cannot be patented. This means that, as a matter of policy, the USPTO will not patent things such as processes for building a nuclear bomb. 

Perpetual motion machines are another such area that the United States Patent and Trademark Office (USPTO) has developed a specific policy against patentability. Perpetual motion machines theoretically can carry out work indefinitely without an external power source. However, an operable perpetual motion machine has not actually been created. 

Because perpetual motion machines proposals have become so commonplace with the USPTO, the government has developed a policy specifically prohibiting patent applications on these perpetual motion machines. 

Types of Patents

There are three main types of patents:

  1. Utility Patent: This covers the creation of a process, manufacture, product, or machine. This is the most popular type of patent granted by the USPTO. 
  2. Design Patent: This covers the ornamental design aspects of a functional invention. 
  3. Plant Patent: This covers new and distinctive plants that are able to be asexually reproduced. 

The USPTO has an application and approval process applicable to these three types of patents. It is helpful to have all the inventors participate in drafting the patent application. Once you have completed the filing of your patent application to the USPTO, a patent examiner will review prior art and compare it against your invention’s application. 

Your invention must be sufficiently distinct from any prior art. Once this process has been completed, the USPTO will issue a patent for your invention.

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