Patent Attorney and Founder
Do you have valuable intellectual property (IP) to protect, but you’re unsure what can be patented? You’re not the first, and you certainly won’t be the last. Patent-eligible subject matter can be a tricky subject to navigate. Lucky for you, Bold Patents likes educating people about patenting almost as much as we like protecting people’s IP. Below, you’ll find a comprehensive and exploratory answer to the question, “what can be patented?”
What Can Be Patented?
Before we delve into the specifics of what can be patented, let’s lay a common myth about patenting to rest. Upon researching what can be patented, you’re likely to encounter the phrase “almost anything” quite frequently. Unfortunately, the truth isn’t as cut and dry as this answer makes it out to be. Although patent-eligible subject matter encompasses a wide range of intellectual property types, your invention must meet additional criteria. For example, your patent-eligible invention must satisfy the US Patent and Trademark Office (USPTO) requirements for novelty and utility. Specific industries may also have nuances that make it difficult to determine eligibility, like software and computing.
Patent-Eligible Subject Matter
There are two initial checks to perform when determining what can be patented. The first is whether the invention is patent-eligible subject matter. The second is whether that invention could be deemed a judicial exception. To be eligible for patent protection, an invention must fall into one of the following four categories set forth by 35 USC 101:
- Processes
- Machines
- Manufactures
- Compositions of matter or material
Patent Eligibility Exceptions
Judicially recognized exceptions to patent-eligible subject matter are typically limited to abstract ideas, laws of nature, natural phenomena, and products of nature. However, any subject matter the court finds to be outside of the four statutory categories above may be considered an exception. The Supreme Court cites a basis for these exceptions, stating that natural phenomena and laws of nature “are the basic tools of scientific and technological work.” In other words, granting patent protection to basic or naturally occurring elements may impede innovation in the long run.
Five Major Patentability Requirements
Subject matter isn’t the only thing that dictates what can be patented. It’s actually just one of the five major patentability requirements set forth by the USPTO. Below, you’ll find the entire list of patentability requirements.
- Subject matter. As described by the preceding two sections of this article.
- Utility. The invention must serve a purpose or be considered useful. (This only applies to utility patents; design patents do not need to demonstrate utility.)
- Novelty. The invention must not be like any existing patent. If it is a design, its uniqueness must be proven.
- Non-obviousness. In this context, non-obviousness means that the invention is not readily apparent to someone with ordinary skill in a relevant field.
- Written requirements. These are sometimes referred to as “enablement.” A clear, concise description must be set forth to carry out the subject invention. A pertinent engineer should be able to create a prototype of your invention based solely on the description provided. There are exceptions and variations of this patent requirement—for example, software patents may not require code, and design patents do not require any written documentation. An IP expert or attorney can help you ensure your invention meets each requirement.
For a deeper dive into the major patentability requirements, check out our previous blog post, “Does My Invention Qualify for US Patent Protection?”
Need Help Determining Whether Your Invention Is Patentable?
Navigating the patenting process can be complicated. This sentiment is especially true if your invention is complex and you’re unsure what can be patented and what can’t. Nonetheless, it’s vital to protect your intellectual property from theft and misuse. That’s why Bold Patents offers free 20-minute Discovery Calls for aspiring inventors.
Contact the experts at Bold Patents today. We’ll help you determine what can be patented and how you can patent it for maximum protection.