What can be patented?

According to the 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.” Technically, this phrase means that in order to qualify for a patent your invention must satisfy four main requirements:

The subject matter must be patentable.
So what is patentable? Let’s start with what is not. An idea is not patentable and cannot be protected by a patent. In order to protect an idea, it must materialize in one or more of the following options:

  • A process or method (e.g. a new method to manufacture bubble gum, a new process to obtain steel)
  • A machine (in order to be considered as part of this category the invention needs to include moving parts or circuitry)
  • A manufactured article (it does not require moving parts, or it can have just a few, but it needs to be a tool or another object that accomplishes a result, thus being considered useful- e.g. a new type of pen or chair)
  • A new composition (e.g. new pharmaceutical)
  • A new variety of plant (for plant patent).

It is important to take into consideration that are subject matters which cannot be patented even if they seem to fall into one of the previously mentioned categories, including: mathematical formulas, processes realized entirely with the human-body, naturally-occurring substances, laws of nature.

The invention must be novel.
By novel it means that it simply must be new, different from what is defined as “prior art” and includes any knowledge already existing in:

  • the public domain
  • prior patents
  • published applications
  • publications available to the public
  • items on sale

“Prior art” is also described by patent law as anything disclosed as mentioned in the above categories by:

  • Someone other than you or: a joint inventor, another person which has received disclosed information from you/a joint inventor, at any time prior to the date you file your patent application.
  • Or you, twelve months or more before the date you officially file your patent application.

“Prior art” can either help or become a problem for the original inventor if not treated with care:

  • The risks comes from the one-year rule which applies to absolutely everyone, even to the original inventor. It means that if you have published your invention or began selling it and you don’t file a patent application in twelve months from the date you have published the invention or sold the first item, you lose the right to patent the invention.
  • The advantage of disclosure is that your disclosure acts as prior art and nobody can try to obtain a patent within one year from the date of disclosure.

A Provisional Patent Application does not start the one-year rule because your invention is not published by filing for Provisional Application. If your invention has not been disclosed in a publication or by being sold, you can file for a Non-Provisional Application two or more years after filing a Provisional Application.

The invention must have some utility or usefulness.
It refers to the fact that your invention must physically accomplish something. Generally, most invention pass the utility test if they work or accomplish a result. If you choose to apply for a design patent, your invention doesn’t need to satisfy the utility requirement.

Your invention must not be obvious.
For example, if your invention is made by substituting colors or combining two or more existing inventions, it would not be eligible for utility patent. Essentially, your invention needs to show some significant inventive step above prior art and existing common knowledge in the field.