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What is Patentable?

A whole range of innovations, from widgets and electronic devices to manufacturing processes and even plants, may be patented if it meets the criteria. If you have what you believe to be an original innovation, the next step is determining whether it's patentable under U.S. (and sometimes international) intellectual property laws. The following information will help you understand the legal requirements for obtaining a patent. 

See FindLaw's Patents section for more articles and resources.

What is Patentable: Main Categories

1. 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 or technical processes.
  • A "machine" would be anything that would commonly be considered such, from a clockwork to a tractor to a computer.
  • The term "manufacture" refers to articles which are made, and includes all manufactured articles.
  • 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 processes for production.

2. Design Patents

A "design patent" protects the way an article 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.

3. 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 plant so reproduced.

How the Government Decides Which Inventions are Patentable

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

1. 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 can not perform its intended purpose cannot be considered useful in the ordinary sense of the word.

2. Novel 

"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, 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 on sale in the United States more than one year prior to the inventor's U.S. patent application.

These rules do not prevent a person from patenting an improvement to another invention, however. 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 well be a patentable improvement as long as the difference was not obvious.

3. Nonobvious 

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 before 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 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, so a formula that simply made this substitution in an already patented road salt formula would not be patentable.

Types of Products 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 useful solely in 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 reproducible across the world. Another major exclusion in some foreign countries is pharmaceutical products. Certain nations consider it immoral to patent medicines, which sometimes has the effect of making them more expensive and less available to sick people.

Need Help Determining What is Patentable?

Patent law can be quite complex. If you have an invention that you believe to be useful, novel, and non-obvious -- and would like to explore your options -- you should seek the counsel of a skilled patent law attorney in your state. 

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