What can be patented?

What can be patented?

Under U.S. patent law, 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." In general, this means you must satisfy the following four requirements to qualify for a patent:

  • The subject matter must be patentable.
  • The invention must be novel.
  • The invention must have some utility or usefulness.
  • The invention must not be obvious.

Patentable subject matter

A patent cannot protect an idea. Instead, the idea must be embodied in one or more of the following:

  • A process or method (such as a new way to manufacture concrete)
  • A machine (something with moving parts or circuitry)
  • A manufactured article (such as a tool or another object that accomplishes a result with few or no moving parts, such as a pencil)
  • A new composition (such as a new pharmaceutical)
  • An asexually reproduced and new variety of plant.

Even if the invention falls into one of the four above categories, there are certain subject matters that cannot be patented. These include mathematical formulas, naturally-occurring substances, laws of nature and processes done entirely with the human body (such as a technique for shooting a free throw in basketball).

Novelty Requirement

Novelty simply means the invention must be new. That is, it must differ from knowledge already existing in the public domain, prior patents, published applications, publications available to the public and items on sale (all together referred to as "prior art"). Patent law defines prior art in several ways, including:

Anything disclosed as described above:

  • by someone other than you (or a joint inventor, or someone who receives the information disclosed from you or from a joint inventor, at any time prior to your filing date, or
  • by you, one year or more before you file your patent application.

One must proceed with caution: the one-year rule applies to everyone, including the original inventor. For example, if you publish your invention in a magazine or begin selling it, you must file a patent application within one year from the date it was published or first sold. Otherwise, no one (not even the inventor) will be able to obtain a patent for the invention. On the other hand, if you disclose the invention and someone else tries to patent it within one year of your disclosure, your disclosure will stop that applicant from receiving a patent, since your disclosure acts as prior art.

Because a Provisional Patent Application is not published, it does not compromise the confidentiality of the invention and does not start the one-year rule by itself. For example, although you would not get the benefit of the earlier filing date, there is no restriction against filing a full patent application two years after filing a Provisional Application. Again, the invention must not have been disclosed in a publication or sold one year or more before a Non-Provisional Application is filed.

Utility Requirement

Utility means an invention must physically accomplish something. If an invention works, or if it produces a result, then it has utility. In practice, very few inventions fail the utility test. Only when the underlying logic is seriously flawed (for example, a perpetual motion machine), could a patent be challenged on utility. In addition, illegal or highly dangerous products may also be rejected by the USPTO under this requirement.

Design patents do not need to satisfy the utility requirement.

Non-Obviousness Requirement

Non-obviousness means that people skilled in the invention's field (as opposed to the average person) would not consider the invention obvious. For example, an invention made by substituting one color for another or by combining two existing inventions in a logical manner, would typically not be patentable. Put another way, some inventive step is required beyond prior art and existing common knowledge in the field.

LegalZoom can help you patent your invention. Answer questions about your invention using our online questionnaire and we’ll help you assemble and file your patent application. LegalZoom can get you in touch with patent artists that can draw technical illustrations, patent agents to review your application, and our legal plans allow you to consult with an independent attorney about your patent.


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