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What Can Be Patented?

In the world of innovation, having intellectual property protection (IP protection) through the patent system is imperative for protecting intangible assets.

This guide will explore the type of inventions eligible for patent protection and provide a checklist startup companies can use to help determine if your invention is patentable.

Patentability Overview

Under federal 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.

Let's define some of the terms to help explain further:

  • Useful process: A process, act, or method that primarily includes industrial or technical processes
  • Machine: Devices such as engines, tools, and appliances
  • Article of manufacture: Unique products or compositions of matter such as new chemicals or materials
  • Composition of matter: Chemical compositions that may include mixtures of ingredients as well as new chemical compounds
  • New and useful improvement: "Useful" refers to the invention or process having a useful purpose and also includes operativeness. A machine that will not operate to perform the intended purpose is not useful. It would not be patent-eligible.

A deeper understanding of what is useful, novel, and non-obvious can be found in FindLaw's Patents article on the subject.

Once a patent is granted to an inventor, they have the exclusive right to exclude others from making, using, or selling the invention or importing it into the United States.

Types of Patents

Patents fall into three general categories:

Utility patents include new processes, machines, and articles of manufacturing. Improvements to any of these can also obtain a patent.

Design patents include product designs, computer software, and packaging designs.

Plant patents provide protection for the creation of new and useful plant varieties.

Is Your Invention Patentable?

Before you begin the patent application process, you should determine if your invention can be patented. View the checklist below to determine if your new invention is patentable.

  • Is your invention new and novel? Did it exist before?
  • Do you have a clear description of how to make and use the invention?
  • Can someone use your invention?
  • Does your invention exist in physical form?
  • Is your invention not obvious? Is it related to a change to something already invented?

Of course, patent protection is not available for every scientific or technological idea. Abstract ideas or suggestions, laws of nature, and physical phenomena are not patentable subject matter. 

Furthermore, a patent grant is for a new machine or manufacture. It does not extend to the idea leading to the invention. You cannot patent an idea. Inventions must submit a complete description of the actual machine or other subject matter.

Novelty and Non-Obviousness

For an invention to be eligible for a patent, it must be new according to patent law. This means the invention cannot receive a patent if it is publicly known, used, or described in a publication. It also must not have any public sales before the inventor applies for the patent.

If the invention has been disclosed in any printed publication worldwide or has been in public use or on sale in the country for more than a year before the filing date of the patent application, a patent cannot be granted. It doesn't matter when the inventor created the invention or whether the disclosure was by the inventor or someone else.

If the inventor promotes the invention in a publication, uses it publicly, or sells it, they must apply for a patent within one year to avoid losing the right to patent it. It's important to file on the date of public use or disclosure to protect patent rights in many foreign countries.

Even if the invention is not exactly like something known before, a patent may be denied if the differences are obvious. To be patentable, the invention must have a significant difference from what was used or described before, making it nonobvious to a person with ordinary skill in the relevant technology area. For instance, simple changes like substituting one color for another or adjusting the size are usually not eligible for a patent.

Need Legal Advice? Contact an Intellectual Property Attorney

As a small business owner or entrepreneur with a new invention, having patent protection is crucial. The United States Patent and Trademark Office (USPTO) strongly recommends that all prospective applicants retain the services of a registered patent attorney or patent agent to prepare and prosecute their applications.

Find an intellectual property attorney who can help you with the patent process. An IP attorney will also be able to help you determine the type of patent you need and other IP protections that you can use to protect your business.

Visit FindLaw's Intellectual Property Law section to learn about the other types of intellectual property rights, such as trade secrets, trademarks, and copyright protection.

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Contact a qualified business attorney to help you identify how to best protect your business' intellectual property.

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