What Can Be Patented

Exactly What Inventors Can (And Can't) Patent

​Patent laws dictate, from a general to a granular level, the field of subject matter that an inventor can actually apply and be granted a patent for. These laws also lay out the conditions under which a patent may be obtained.

The law states that any person (inventor) who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof," can obtain a patent (subject to the conditions and requirements of patent laws).

The word “process” includes processes, acts, approaches, or methods. This generally covers industrial and technical processes. An example of a patented process would be US PAT#1435303 A, the process for the removal of impurities from tin ore before the ore is smelted.

The term “machine” probably does not need much explanation, but a machine patent would differentiate itself from an 'article of manufacture' patent by having multiple (more than one) interacting pieces; these components or parts usually interact dynamically. That big flat screen in your living room - that's a machine patent (the television). Electronic circuits are mostly machine patents as well.

Articles of "manufacture” refers to objects that are made, and includes all manufactured articles. The Supreme Court defined manufacture as "the production of articles for use from raw or prepared materials by giving to these materials new forms, qualities, properties, or combinations, whether by hand-labor or by machinery."  So when you go to create your prototype, that hammer or pin or crowbar you're likely going to use - that is a product sold under the "manufacture" patent.

"Composition of matter” relates to chemical compositions and may include mixtures of ingredients as well as new formulas or chemical compounds. The Supreme Court defines composition of matter as "all compositions of two or more substances and all composite articles, whether they be the results of chemical union, or of mechanical mixture, or whether they be gases, fluids, powders or solids."

Composition of matter is the most difficult to define as there are gray areas and loopholes, found throughout time and definition iteration, which are grounds for patent application dismissal. If you believe that you have grounds to patent a composition of matter, it's best to file a PPA and then speak with a professional before you waste any time or money in the patent process.

Is There Anything That Cannot Be Patented?

Collectively, the above mentioned classes and distinctions of subject matter cover just about everything that is made by man as well as the processes for creating the "invention".

But that doesn't mean an inventor can patent anything just because one can think of it and make it.

Patent laws specify that, in order to be granted a patent, the invention must be “useful.”

​The term “useful” in this context refers to the invention serving a useful purpose and being in an 'operative' state. A laser hair or beard trimmer that did not effectively trim your beard would not be considered useful; this would bar the inventor from passing the examination and being granted the patent.

Interpretations of the laws have defined the limits of the field of subject matter that can be patented. As a result of the definitions in place, laws of nature, physical phenomena, and abstract ideas are not patentable subject matter.

Is An Idea Patentable?

​A mere idea or suggestion in and of itself cannot be patented.

Patents are granted for new machines, manufactures, chemical compositions, and the other patentable subject matter mentioned above... but patents are not granted for simply suggesting the new machines, manufactures, chemical compositions, etc. 

A complete description of the invention idea - a description of the ideated machine or other subject matter for which a patent is sought - is required to apply for a patent. The biggest reason for this is that there is an abundance of information required on patent applications. ​
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Further Patentability Criteria: Novelty & Nonobviousness

An invention must be novel - or new - in order to be considered for a patent. Patent law defines this newness, or novelty, as an idea that has never been claimed to have been patented, has never been described in a written or printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date.

“Otherwise available to the public” can be a gray area. It refers to things such as an oral presentation at a meeting, a trade show demonstration, a lecture or speech, a website, a YouTube video, etc.

"Before the effective filing date" is important. The US adopted a first-to-file patent, joining virtually the rest of the world. This is the reason filing a provisional patent application as early as possible is so vital; this buys you 12 months of development time. The statement means the actual filing date of the nonprovisional patent application. For a U.S. nonprovisional application that claims the benefit of a corresponding prior-filed U.S. provisional application, “effective filing date of the claimed invention” can be the filing date of the prior-filed provisional application provided the provisional application sufficiently describes the claimed invention.

An invention will also not pass the novelty requirement if the claimed invention was described in an existing patent issued, or in an application for another patent published or deemed published.

Newness and novelty is the reason that when you do have an idea for a new invention, you don't want to publicize it.

Novelty is tricky.

But not as tricky as nonobviousness.

Even if the invention sought to be patented is not exactly shown by the prior art, and it involves one or more differences over the most nearly similar thing already known (enough that it is still considered new or novel), a patent may still be refused if the differences would be obvious.

The invention in question must be explicitly and sufficiently different from the description of any previous or prior invention. This nonobviousness must be determined by a person having ordinary skill in the area of technology related to the invention.

For example, the swapping of one color for another, or changes in size, are ordinarily not patentable. ​Similarly, repurposing an existing invention or product is not going to be patent applicable.

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