Can I patent this? What is a patentable idea?
Patents are one type of intellectual property that can protect your creations. Intellectual property law is federal: so Rational Unicorn Legal Services can assist you with filing patents, trademarks, and copyrights across the United States.
A patent is a type of intellectual property protection for a tangible object that has been improved in a new way.
A trademark is a type of intellectual property protection for a brand such as a business’s name, logo, or product line.
A copyright is a type of intellectual property protection for a creative art, such as a book, song, choreography, or painting.
Let’s dive into what could be patented. Please reach out to us for a no-cost consultation if you would like to discuss the potential patentability of your concept!
A Brief Overview of Patent Law
Section 101 of the U.S. Patent Act sets forth the general requirements for patent protection in a single sentence:
“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvements thereof, may obtain a patent, subject to the conditions and requirements of this title.”
What a short sentence that is! Unfortunately, the actual test for patentability is a bit more complicated than this sentence suggests. A patent may include many claims, each of which defines a specific property right. However, there are additional requirements that an invention must comply with in order to be patentable.
To be patentable, your invention will need to meet qualification requirements.
Requirement #1 - Subject Matter Eligibility
Here are the four types of inventions that can be patented, as defined in Section 101.
1. Processes
2. Machines
3. Articles of manufacture
4. Compositions of matter
If an invention does not fall within one of these four categories, your invention is not patentable. But, you may want to have a conversation with a patent agent to discuss if what you have in mind does indeed fall into one of these categories, because they are not intuitive.
Furthermore, an invention must first contain patentable subject matter. The Supreme Court of the United States held in Diamond v. Chakrabarty that inventions directed to a law of nature such as gravity, a natural phenomenon such as a naturally-occurring mineral, or an abstract idea such as a mathematical equation, do not contain patentable subject matter and thus cannot be patented. If your invention is a literary, dramatic, musical, or artistic work, it may not be patentable; however, it may be protectable through a copyright instead.
Some things that are patentable include: software, tangible objects, plants under certain circumstances.
Things like food manufacturing and recipes often protect their practices through trade secrets.
Requirement #2 - Novelty
Novelty means new. Is your idea new?
Under 35 U.S.C. § 102(a), a person is entitled to a patent unless the claimed invention was “patented, described in a printed publication, or in public use, on sale, or otherwise available to the public” before the person filed a patent application for the invention.
The most important rule, however, is that an invention will not normally be patentable if:
The invention was known to the public before the applicant filed for patent protection
The invention was described in a printed publication before the applicant filed for patent protection
The invention was described in a published patent application or issued patent that was filed before the applicant filed for patent protection
Requirement #3 - Utility
Being new isn't enough, nor is being different. The patent law specifies that the subject matter must be "useful". This means that the invention must have a useful purpose. An invention is useful if it provides some identifiable benefit and is capable of use. Meanwhile, inventions that are merely hypothetical devices, such as perpetual motion machines or time machines, will likely fail to satisfy this requirement.
Requirement #4 - Nonobviousness
If an invention is not exactly the same as prior products or processes, then the invention is considered novel. However, in order for an invention to be patentable, the patent statute also requires that the invention be a non-obvious improvement over existing objects. Even if your invention is novel though, a patent examiner may still determine that your invention is an obvious variation of something that has already been disclosed to the public.
An examiner in the patent office will normally review previous patent documents to find patents and published patent applications that are closest to the patent you are seeking. If all the features of the invention can be found in a single patent, the examiner will reject the patent as lacking novelty.
The goal here is to convince the patent examiner that no person would have known or been motivated to combine elements that already existed in order to create your invention.
Okay, so: Can I Patent My Idea?
A registered patent attorney or agent can help you with patentability search. During a search, the agent or attorney reviews the inventions that people have previously made in a particular field and compares these findings against the features and structures of your invention. This comparison process helps to provide the inventor with a subjective opinion about whether an invention is eligible for broad patent protection, narrow patent protection, or no protection at all.
If you’d like to get started by discussing the patentability of your invention, get in touch with Rational Unicorn Legal Services via our contact page.
We offer a no-cost consult to discuss how you may be able to potentially protect your intellectual property.
We can also assist you with contracts such as Non-Disclosure Agreements and protecting other intellectual property such as trademarks and copyrights.