What Can and Can’t Be Patented? 

When you invent something, you usually don’t invent it with the idea of letting someone else use it for free, let alone steal credit for it. If you’re not careful, someone can and will. When this happens, it can be difficult to disprove it. Even if you prove infringement in a court of law, it’s incredibly difficult to then prove you created the invention in the public eye. To ensure you receive profit and recognition for your invention, you can get a patent, but not everything can be patented. If you don’t know if yours can, the patent protection attorneys at Emerson Thomson Bennett can help.

How Do You Determine Patentability?

The United States Patent and Trademark Office (USPTO) evaluates several factors to determine what is considered patentable. There are four criteria that are looked at when deciding if your patent is indeed patentable. If one of these criteria describes your patent, then it’s likely patentable. Some patents can meet multiple criteria, but rarely – if any – meet all.

• Machine: Whether or not the patent is made with parts that interact with each other.
• Manufacture: The patent provides a function, but without moving parts. For example, a fork does not have moving parts, but it does provide a function.
• Composition of Matter: If something is a specific combination of chemicals, it has a specific, patentable design of matter.
• Process: When the patent is not a physical item, but a way of doing things that haven’t been done before, it can be patentable.

What Can’t Be Patented?

Patents are not the only type of intellectual property (IP) protection that allows someone to protect their ownership of something they created. There are also trademarks, copyrights, and trade secrets. Anything that’s covered by one of them usually cannot be protected by a patent. This includes:

• Creative works
• Brands
• Business secrets over 20 years old

Some things do not fall under the protection of other types of IP protection that also cannot be protected by patents. This includes anything that is in the public domain and other things such as:

• Scientific discoveries
• Mathematical methods
• Aesthetic creations
• Rule or method for performing a mental act
• Computer program functions
• Style of presenting information
• Medical procedure
• Anything illegal
• Biotechnology

What Can Be Patented?

Inventions that meet one of the criteria of patentability, must then meet three more requirements:

• Serve a useful function
• Meet the legal definition of “novel” (unique or unusual)
• Can’t have been invented by someone else

Examples of things that can be patented include things like:

• Compositions
• Production processes
• Machines
• Tools
• Plant species
• Upgrades to existing inventions

Unsure If You Can Patent Your Invention? Contact Emerson Thomson Bennett

We have an extensive portfolio of clients with patents we have reviewed, filed, and protected. If you’re unsure of whether or not your invention can be patented, we can help. Patents are one of the most complicated IP protections you can get. We know how to help you get one.

We also help companies trying to get American IP protection from outside the country. With our international connections in Japan, Germany, South Korea, and many other countries, we can assist businesses that need help entering the American market or vice versa.

For any help with your patents, contact our attorneys today.