What Can (and Can't) Be Patented?

How Patents Work and Recent U.S. Patent Law Changes

What can be patented? What can't be patented?
What can be patented? What can't be patented?. David Woolfall/Getty Images

Ever since someone invented fire, and someone else invented a way to use that fire to cook, people have been inventing crazy things. And since the 15th century, people have been claiming ownership of their inventions by the process of patenting. 

You have a great idea, but can you patent it?

In this article, we'll look at what can be patented and what you can't patent. We'll also look at the most recent changes to patent laws in the U.S., where the question about what can be patented has been revised dramatically. 

What Is a Patent? 

A patent is simply a way to claim ownership of something you have invented, and to have a process for keeping others from stealing that invention. Patents are only as good as the laws that protect them because it's usually the case that you must take someone to court to get them to stop using your invention to make money for themselves. 

In the U.S., patent laws are administered by the federal government, under the U.S. Patent and Trademark Office (USPTO)

What Types of Inventions Can I Patent? 

 The USPTO has designated three general types of patents

1. Utility patents may be granted to someone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;
2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and
3) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

General Requirements for Inventions to Be Patented

Notice that there are two general overriding qualifications for something to be able to be patented.  ​

  1. It must be new. It can be a variation of something else, but it has to be distinct from the original thing. For example, if someone has already invented a small green wozzle, you can't invent a big red one. That's not different and not new enough to be patentable. ​
  2. It must be useful. You might invent a new wozzle, but if this wozzle can't be used for anything, it can't be patented. 

You can't patent an idea unless you can show its practical use and that it's obviously different from anything else anyone has ever seen or used. 

More on the Types of Inventions You Can Patent

Here are the kinds of inventions that you can patent, with examples: 

A process or a method, like a new way to do something. For example, a patent was granted to a company who invented a new way to clean gun bores.  In another example, Amazon patented its "one-click" ordering process. There is some controversy about whether business methods, like a new accounting procedure, can be patented. 

An "article of manufacture" — a thing made by machine or by hand. An article of manufacture can be something sold to consumers (a new kind of soap, for example) or to businesses (a new type of copier). It can also mean a component of a product. 

A design, like the design of a new kind of computer mouse, can also be patented. A design, according to the USPTO, is a "new and nonobvious ornamental design for an article of manufacture."The inventor of the design can then grant licenses to others who will make the new mouse. An example of a design patent might be a new computer design. 

A composition of matter, for example, a chemical mixture or ingredients, like a new drug. 

A plant, that is, a natural growing thing discovered or invented through asexual reproduction; for example, a new hybrid lily. 

An internet algorithm or an app. In this age of the internet, you can also file a patent for something you create for the internet, like an application or program. These are typically called "business method patents" because they are about how to do things. The criteria are the same - the thing must be new and useful.

What Can't Be Patented? 

The USPTO says you can't patent something if: 

It already exists or has been sold. If you want to patent something, don't make it and sell it to the public before you file the patent application. There may be some leeway on this if the product is disclosed "a year or less before the effective filing date," but don't count on it. ​

It was "otherwise available to the public," which includes showing it in a presentation or demonstration or talking about it on a talk show, a video, or a website.

Don't get ahead of yourself; patent first, then talk about it. ​

It was already patented. The invention you are claiming a patent for something, If there is a previous patent application that was filed by another inventor before you, you're out of luck. 

 Who May File a Patent Application? 

This may sound like a simple question, but it's more complicated than it might appear. Over the history of the U.S., patent laws have been changing to keep up with the changing times. The most recent change has been the America Invents Act (2011), and especially the parts of the Act that were put into play in 2013. 

The 2013 portion of the new patent law has new standards for who gets to file a patent. In the past, it was the first person to invent a new and useful thing. Now, it's the first person to file the patent

Let's say two people are working on the same thing independently. It's difficult to know which person "invented" the thing and when the thing was actually invented. Lawsuits — expensive and lengthy — are sometimes the only way to sort out who was first to invent. So, the law was changed to give the patent to the first person who applies. 

Since the "first to file" part of the law was made effective in 2013, there has been disagreement about whether it favors big corporations over small businesses. A big corporation has a big legal department and can file a patent and get it accepted quickly. A small business owner seems to be at a disadvantage in the filing process. 

The America Invents Act is very complicated and full of loopholes and complex language. Yes, you can still file your own patent application, but you may want to hire a patent attorney to help you. As a matter of fact, a better name for this new patent law might be the "Full employment for patent attorneys act." 

The Best Way to File a Patent Application

Filing a patent application is not a DIY thing and lawsuits continue to define the possibilities, like the internet patents mentioned above. Yes, you can go on to the USPTO website and get detailed information and even file your patent application online.

But first, get the help of a registered patent agent or a patent attorney. A registered patent agent is someone with a scientific background who is registered with the USPTO, with knowledge on how to file patents in their area of expertise.

A patent lawyer may also be a registered patent agent. A lawyer can help you do research on the area of your patent, helping you figure out whether someone else has patented the thing already.

The best person for finding someone to help you file your patent would be a patent attorney who is also a registered patent agent.