What can be patented? In simplest terms, any invention that is a useful, new, and non-obvious action, thing, or product which is not an abstract idea, law of nature, or natural phenomenon can be patented. Actions are processes and methods. Things or products are machines, manufactures, and compositions of matter. Importantly, like any new action, thing, or product, plants and unique ornamental designs can be patented too if they meet the four criteria for patentability outlined below.
What generally cannot be patented are abstract ideas, laws of nature, and natural phenomenon. These things are not typically patentable because they are the basic tools of science and technology and should belong to all humans. However, if the claims of your invention are directed to abstract ideas, laws of nature, and natural phenomenon, they may still be allowable if they amount to significantly more than just the abstract idea, law of nature, and natural phenomenon.
What are the Four Criteria for Patentability?
There are four criteria used to determine the patentability of an invention. A new invention can be patented if it is (1) patent eligible subject matter, (2) has utility, (3) is novel, and (4) is not obvious. If your invention claims actions, things, or products that meet these four criteria and a complete and proper application is filed, it can be allowed and issued a patent.
For patent applications in the United States (U.S.), and as a general guide, the above four criteria are used to determine what can be patented. For International Patent Cooperation Treaty (PCT) applications, the four criteria are (1) patent eligible subject matter, (2) novelty, (3) inventive step, and (4) industrial applicability. For the PCT, novelty is the same, inventive step is similar to non-obviousness, and industrial applicability is similar to utility.
Important Note: A prior art search is required to properly complete a patentability determination.
What is Patent Eligible Subject Matter?
An invention must be patent eligible subject matter. The first of the four criteria to determine what can be patented is whether or not the invention is patent eligible subject matter. Patent eligible subject matter is any process, machine, manufacture, or composition of matter that is not an abstract idea, law of nature, or natural phenomenon. In other words, most everything we do and have is patent eligible.
Processes are methods or actions that are a series of steps or the acts to be performed. Machines are things or products that consist of parts, devices, or combinations thereof that are themselves apparatuses or devices. Manufactures are things or products that result from the process of manufacturing. Compositions of matter are a combination of two or more substances (gas, liquid, solid).
Most actions, things, and products are, or were when first envisioned and put into practice (made and used), patent eligible subject matter. However, there are limitations on patent eligible subject matter. What has already been patented cannot itself be patented again without further improvement. And, of course, the invention must also meet the other three criteria. Read more about patent eligible subject matter at the USPTO.
Carson Patents’s patent attorney verifies the determination about whether or not an invention is patent eligible subject matter as the first stage of our patentability study. After the first stage, a prior art search is needed to complete the study in the second stage. The second stage of our patentability study is comprised of the other three criteria for patentability. We make the determination about whether or not an invention has utility, novelty, and non-obviousness based on the prior art.
What is Patentable Utility?
An invention must be useful to be patentable. The second of the four criteria to determine what can be patented is whether or not the invention has a utility. In other words, utility is whether or not the invention is useful. Specifically, to show utility sufficient to meet this criteria, a claimed invention must be useful or have a utility that is specific, substantial, and credible. Generally, any use will meet this criteria.
An invention has utility if it is useful for something or has a utility that is specific, substantial, and credible. Frankly, pretty much any use is sufficient to meet the utility criteria. However, there are some limitations on this utility. The utility has to be for something more than just being trash. Further, there has to be a legal use. The utility cannot have only an illegal purpose. Meeting the utility criteria for an invention is not typically a barrier to what can be patented.
What is Patentable Novelty?
An invention must be novel (new) to be patentable. The third of the four criteria to determine what can be patented is whether or not the invention is novel. In other words, whether or not the invention is new. The invention cannot already be available, patented, or in a patent application anywhere in the world. Any existing public disclosure, from anywhere in the world, of the claims of an invention means the invention is not new and thus not patentable.
A prior art search is required to determine whether the invention claims are novel. Prior art searching is the research needed to determine if any existing patent, patent application, or non-patent literature (pretty much anything on the internet) discloses the invention. If any prior art discloses an invention, the invention is not new.
An invention has novelty if it is not found in the prior art search. It is new if it not disclosed in the prior art. In other words, it is new if it does not already exist anywhere in the world. The limitation on novelty is that the prior art has to disclose the same claims as the invention in order to make the invention not new. Importantly, meeting this criteria is possible while also determining that the invention is not non-obvious.
Important Tip: Timing matters, if the invention has been disclosed to the public for more than one year without being claimed in a patent application, it may become its own prior art showing the invention is not new thus not patentable.
What is Patentable Non-Obviousness?
An invention must be non-obvious to be patentable. The fourth and final of the criteria to determine what can be patented is whether or not the invention is non-obvious. Non-obvious means that the invention is new (the second criteria) and no combination of prior art if given to a person having skill in the art would know how to make and use the invention.
In other words, non-obvious means that there is no prior art or prior art combination that explains how to make the invention. If any parts of two or more patents, patent applications, or non-patent literature together would explain to a person who normally works in the art of the invention how to make the invention, it is obvious.