What Is Patentable?
Created by FindLaw's team of legal writers and editors | Last reviewed October 19, 2023
A range of innovations, from widgets and electronic devices to manufacturing processes and plants, may be patentable if they meet the U.S. Patent and Trademark Office criteria. If you have an original innovation, the next step is determining whether it's patentable under U.S. intellectual property (IP) laws.
There are four main types of intellectual property. The type of intellectual property protection depends on the invention, idea, or brand. The different types of IP protection are:
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: Types of Patents
A patent grants exclusive rights to the inventor for a limited time to prevent others from using, making, selling, or importing the invention. Maintenance fees are required to keep patents enforceable. This allows the holder to take legal action against patent infringers. There are three types of patents: utility, design, and plant.
1. Utility Patents
Under federal statute, any person who "invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof, may get a patent."
- A process is a process, act, or method of doing or making something. It primarily includes industrial or technical processes.
- A machine is anything commonly considered as such, from clockwork to a tractor to a computer.
- The term manufacture refers to articles made and includes all manufactured articles.
- A composition of matter is a chemical composition. It may include mixtures of ingredients and new chemical compounds.
2. Design Patents
A design patent protects the way an article looks. Most manufactured items have functional and ornamental characteristics. So, inventions could need both utility and design patents for full protection.
For example, Apple Computers introduced an iMac, a unique, decorative computer. The iMac had a curved case with CPU, drives, and track. It was made of white see-through plastic and colored transparent plastic. While some parts of the computer might have already had patents, the design features were eligible for a separate patent. These features are independent of the iMac's functionality.
3. Plant Patents
A plant patent may be granted when a new variety of plant is created and asexually reproduced. This does not include tuber-propagated plants or a plant found in an uncultivated state. The patent protects the inventor's right to exclude others from asexually reproducing, selling, or using the plant.
How the Government Decides Which Inventions Are Patentable
An item is patentable if it is useful, novel, and nonobvious.
The term "useful" means that the subject matter has a useful purpose. It also requires that the item is operable. A machine that cannot perform its intended purpose cannot be considered useful in the ordinary sense of the word.
"Novelty" is strictly defined by patent law. An invention is not novel 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 before the inventor's U.S. patent application.
- The invention was in public use or on sale in the United States more than one year before the inventor's U.S. patent application.
However, these rules do not prevent a person from patenting an improvement to another invention. 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 be a patentable improvement.
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. “Non-obviousness" requires a sufficient difference from what has been used or described before, such that a person with ordinary skill in technology related to the invention would find it challenging to make the change.
For example, people can use sodium chloride (table salt) and potassium chloride (a chemically similar salt) interchangeably. A chemist working to improve road salt would consider it obvious to substitute potassium chloride for sodium chloride. A formula that 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 patenting inventions solely useful in using unique 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 so that others can duplicate it by following the directions. The United States did not want its nuclear technology, mainly weapons technology, to be reproducible worldwide.
- Another significant 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.
Resources for Small Businesses
If you are an entrepreneur or have a startup company, the United States Patent and Trademark Office (USPTO) has helpful resources. The USPTO partners with the Small Business Administration (SBA) to provide IP rights training to small business owners. They provide resources for how to get a registered trademark and the trademark application process. The SBA also provides resources about the patent system.
Need Help Determining What Is Patentable?
The patent process can be complex. If you have an invention that you believe to be useful, novel, and nonobvious – and would like to explore your options – you should seek the counsel of a skilled patent attorney in your state.
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.
Contact a qualified business attorney to help you identify how to best protect your business' intellectual property.