Patent Process

What Can Be Patented and What Cannot?

By June 3, 2020

One of the most common questions I hear every day is “Can this type of thing be patented?”

It’s easy to understand because it can be very confusing to know whether your invention/product idea falls into a patentable category, when it comes to determining what’s called “patentable subject matter”.

This article was written to help clarify exactly what types of things can and cannot be patented.

“Patentable subject matter” is a legal term that simply means the types of products or ideas that can be patented.

It is called a threshold question, because while there are other requirements for patentability, the question of whether there is patentable subject matter is the first one that must be considered when seeking a utility patent.

An idea must first fit the mold of patentable subject matter. There are 4 main categories that together constitute patentable subject matter:

  1. Machine– a functional item that consists of parts that interact. Generally, it has moving parts.
  2. Manufacture– an object that might lack moving parts yet, provides a function. For example: a shovel lacks moving parts but it’s shape allows it to perform a function.
  3. Composition of Matter– a combination of chemicals. For example, a hair care product, a pharmaceutical, a cleaning product that consists of a combination of ingredients.
  4. Process – a set of steps for doing something. This traditionally has been used to protect methods of manufacturing, but more recently is the category used to include business methods and computer software.

While these categories were created long ago, most physical and functional inventions will fit at least one of the first three categories.

In the last category (processes) there has been a whole lot of debate, in recent years about what qualifies as a process. Several major cases have been decided by the U.S. Supreme Court in an attempt to clarify what can qualify for patent protection.

For this reason alone, in many cases you need someone experienced and qualified to make the best determination as to whether your business model or process can qualify as patentable subject matter.

If you feel like your product/invention falls into one of these four categories, then it is important that you have a seasoned patent attorney conduct an evaluation to see if your invention meets the other requirements for patentability.

Most important of these, are whether it is new and non-obvious when compared to the best prior art.

If what you have created qualifies as patentable subject matter, is new, useful and non-obvious, then it is likely you can get the protection that you need.

If you've never patented anything before, watch these 6 short intro videos to learn exactly what you need to know about the patent process to protect your valuable idea.

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