Two Criteria for Patentability

Part 2 of 6

Before your idea or invention can be eligible for a patent, it must meet two important criteria.

In this second video, in this 6 part series, Rich discusses these criteria and how to determine if a patent is appropriate for you.

The kinds of things the USPTO will patent

The two most important criteria that we need to look at to see if what you have is patentable are called patentable subject matter and distinctiveness.


Patentable subject matter simply means that what you have is the type of thing that can be patented. To determine whether what you have can be patented, first decide whether it fits in one of the basic categories of what can be protected. There are four basic categories of things that can be patented. It doesn’t matter whether you can tell exactly with one fits your idea, it can even fit more than one. So don’t let the categories bog you down too much.

The four basic categories of patentable subject matter are: Machine, Manufacture, Composition of Matter, and Process (a.k.a. Method). We’ll give you examples of each one:

Machine traditionally means something with moving parts that interact. When you think of a machine, you think of something with gears, something that might have a motor or an engine, things like that. But actually, things that qualify as machines include anything that has parts that interact with each other. So even an electrical circuit—where nothing actually moves—is considered a machine under patent law and is eligible for patent protection.

Manufacture is something that doesn’t have moving parts, but it still has a function. For instance, a paper clip is a manufacture because it’s a single piece of wire that’s bent in a way that gives it functionality. It’s something physical that doesn’t have moving parts, but it’s still functional.

Composition of Matter is a combination of chemicals—it could be a pharmaceutical; it could be a household cleaning product; it could be a new shampoo—where you’ve taken one existing chemical and added it to another. A composition of matter is simply where you take chemicals and put them together, and the resulting combination serves a useful purpose.

Process (a.k.a. Method) could be something like a new way of refining steel, where you have a new set of steps that you follow in order to refine the steel. And it’s not that the resulting steel is different from what came before; it’s that the method or the process or the way that you do it is different. Over the last couple of decades, software has been protected using the category of process or method. Also, certain ways of doing business have been protected because they fit under this category, as well.

As mentioned before, you might actually see your invention in more than one of these categories, and it’s actually not important to figure out where it fits. The important thing to figure out is that it fits somewhere—in at least one of these categories.

These categories of patentable subject matter apply to what’s called a utility patent. A utility patent is the most common form of patent protection. There is another kind of patent, called a design patent, that applies when the only thing that’s unique about your product is the shape of it or the look of it—if the difference between your idea and what’s out there is just for ornamental purposes. Because a design patent is probably not what you’re here for, we’re going to continue our discussion assuming that you have something that has patentable subject matter, and that you’re headed for a utility patent.


Distinctiveness is a determination of how different your idea is from similar things that already exist. In the field of patent law, we refer to “things that already exist” as prior art. Prior art are things that have been done by others before you that relate to your invention, and that are really relevant to the question of how different your invention is from previous thought, previous ideas, previous concepts, and previous products.

So, in order to get a patent, your idea needs to fit the two basic criteria first: 1) It has to be patentable subject matter. 2) It has to be distinctive from the prior art.

In part 3 of this series, we’ll discuss just how distinctive your idea has to be from the prior art in order to get a patent.

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