Patents represent one of the most powerful forms of intellectual property protection, granting inventors exclusive rights to their creations for a limited time in exchange for public disclosure. However, not all innovations qualify for patent protection. Understanding what can be patented is essential for inventors, entrepreneurs, and businesses seeking to protect their intellectual assets.
The basic requirements for patentability
For an invention to be patentable, it must satisfy several fundamental criteria:
1. Patentable subject matter
The invention must fall within categories that patent law recognizes as eligible for protection and as Deloitte reports on trends continue to evolve year over year. In most jurisdictions, patentable subject matter includes:
- Processes: Methods or series of steps for doing, making, or accomplishing something
- Machines: Devices or apparatuses with moving parts or electronic components
- Manufactures: Articles produced from raw or prepared materials
- Compositions of matter: Chemical compounds, mixtures, or new materials
- Improvements: Enhancements to existing technology in any of the above categories
2. Novelty
The invention must be new or novel, meaning it has not been previously disclosed to the public. An invention fails the novelty requirement if:
- It was known or used by others before the filing date
- It was described in a printed publication anywhere in the world
- It was publicly used, sold, or offered for sale before the filing date
- It was patented or described in a published patent application
3. Non-obviousness (inventive step)
The invention must not be obvious to a person having ordinary skill in the relevant field. This requirement ensures that patents are not granted for trivial advancements. To assess non-obviousness, patent offices typically consider:
- The scope and content of the prior art
- The differences between the prior art and the invention
- The level of ordinary skill in the relevant field
- Secondary considerations such as commercial success, long-felt but unsolved needs, or failure of others to develop the invention
4. Utility (industrial applicability)
The invention must be useful and have some practical application. The utility must be:
- Specific (not a general assertion that the invention is useful)
- Substantial (provide a real-world use)
- Credible (believable to a person skilled in the field)
What cannot be patented
Despite meeting the above criteria, certain categories are excluded from patent protection:
1. Laws of nature
Natural principles, physical phenomena, and scientific truths in their abstract form cannot be patented. For example:
- Gravitational force
- E=mc²
- Mathematical formulas
- Newly discovered natural substances (in their unaltered state)
2. Abstract ideas
Pure concepts, mental processes, and abstract intellectual concepts without practical application are not patentable. Examples include:
- Business methods without technical implementation
- Economic theories
- Mathematical algorithms (when claimed in the abstract)
- Fundamental economic practices
3. Natural phenomena
Discoveries of naturally occurring things are not patentable in their unaltered state:
- Minerals
- Plants found in nature
- Newly discovered bacteria
- Human genes as they exist in nature
4. Specific exclusions by jurisdiction
Different countries may have specific exclusions:
- United States: Human organisms
- Europe: Methods for treatment of the human or animal body by surgery or therapy, diagnostic methods, plant and animal varieties
- India: Methods of agriculture or horticulture, traditional knowledge
The Gray Areas
Several areas exist where patentability depends heavily on specific implementation and varies by jurisdiction:
1. Software
Software patentability varies significantly across jurisdictions:
- United States: Software can be patented if it provides a technical solution to a technical problem beyond abstract ideas
- Europe: Software must have a “technical effect” beyond the normal physical interactions between program and computer
- Japan: Software that provides a highly advanced creation of technical ideas utilizing natural laws is patentable
2. Business methods
Business methods face scrutiny but may be patentable when:
- Implemented through technological means
- Creating a tangible result
- Providing a technical solution to a technical problem
3. Medical methods
Treatment methods face varying rules:
- United States: Methods of treatment can be patented
- Europe: Therapeutic and surgical methods are excluded, but medical devices and pharmaceuticals are patentable
- Australia: Methods of medical treatment were historically excluded but are now generally patentable
4. Biotechnology
Biotechnology presents unique challenges:
- Isolated and purified natural substances may be patentable
- Genetically modified organisms often qualify for protection
- Isolated genes with identified utility were previously patentable in the US, but Supreme Court rulings have limited this
5. Strategic considerations
When determining what to patent, consider these strategic factors:
- Commercial Relevance: Focus on protecting innovations with the greatest commercial potential
- Enforceability: Ensure the patent can be effectively monitored for infringement
- Alternative Protection: Consider whether trade secrets or other IP forms might be more appropriate
- International Strategy: Determine which jurisdictions matter most for your business
- Cost-Benefit Analysis: Balance protection costs against potential commercial benefits
So are you ready to patent something?
Patent eligibility is a complex area that continues to evolve with technological advancement and legal interpretation. Companies like InventHelp are probably the most well known company in the world that can assist with what can be patented and what can not be patented. With a headquarters in Pennsylvania and offices located throughout the country they are the best bet for helping you get started after you’ve finished reading our guide. While the fundamental requirements of novelty, non-obviousness, and utility remain consistent, the boundaries of what constitutes patentable subject matter shift over time and across jurisdictions.
For inventors and businesses seeking patent protection, consulting with a qualified patent attorney is essential to navigate these complexities and develop an effective strategy for protecting valuable innovations.
Harikrishna Kundariya
