This is Part 1 of our ‘Basics of IP’ blog series on what can be patented. The following has been adapted from “Can I Patent That?”, a Michelson IP animated short.
Say you’ve got a genius idea…
and you’d like to patent it. The first thing you need to know is that you can’t patent a mere idea. So you are probably wondering: what can be patented?
Your idea has to be manifested in a tangible product or process.
- Products are physical things, such as a machine, a tool that has one or more moving parts and uses energy, a manufactured item, a product or part that is produced according to design, or a composition of matter (a newly-synthesized chemical compound or molecule.)
- Processes, on the other hand, are means to an end —either a means of doing something new—or a new way of doing something old.
It’s important to know that you cannot patent things that exist independently of human intervention, as they must be freely available to all humanity for our collective understanding and betterment. This includes:
- A mathematical formula
- A law of nature
- Natural phenomena like electricity or light waves. However, you can patent a device that uses electromagnetism or light waves to communicate.
Things can get a little blurry when it comes to software. The Supreme Court has wrestled with this issue for more than 40 years and still hasn’t resolved exactly when software is patentable. You can’t patent computer algorithms since they are mathematical formulas. Software may be patentable, though, if it employs those algorithms to produce a tangible result.
What if you take some ordinary activity people have been doing for centuries, such as selling clothing, and then simply “do it through a computer?.” Nope. That won’t get you a patent.
Standard criteria for a patent
If you believe you have a patent-eligible invention, you’ll need to meet three criteria to get a patent:
Novelty means that your invention must never have been previously patented, described in a patent application, written about, disclosed to the public or offered for sale anywhere in the world. It has to be brand new. But wait! What if you invent a faster-than-light warp drive? Does the novelty bar mean you can’t patent it because it was disclosed on the TV show Star Trek 50 years ago? Actually you could potentially patent it because the TV show did not describe a warp drive in sufficient detail to enable someone skilled in the science of space propulsion to build it. So take heart, Star Trek fans!
The second criteria is utility, which simply means that your invention must function as intended. For example, the U.S. Patent and Trademark Office used to deny patents to hair re-growing products because they didn’t work — and therefore lacked utility. However, finally someone invented a composition that really did regrow hair on a bald scalp, and patents have been issued for these products ever since.
The final criteria is non-obviousness. This is where inventors face their biggest hurdle with patent examiners.
Say you invent a wheeled cart to move office supplies more easily between departments. You can patent it if it is the first wheeled cart of its kind. If you then decide, “Hey, why not put those wheels on a chair?” you won’t get a patent for it. This is because combining two such widely-known and available elements would be obvious to anyone skilled in the art of office furniture design.
Real world ideas turned patents
Things are not so obvious when it comes to the invention of the camera phone. Even though it’s composed of well-known and widely available components, combining the two (camera + phone) did satisfy the requirement for non-obviousness because they became more than the sum of their parts, and met a large and previously-unfilled need in the marketplace.
Remember, a patentable invention doesn’t have to be a huge revolutionary breakthrough. In fact, the best inventions are often the little things — small advances such as the zipper or hot coffee sleeve — that save people time, money, or hassle in their everyday lives.
So now that you know what can be patented, what’s holding you back?
Continue on to Part 2 and Part 3 of the blog series. For more in-depth information on patents, check out the free online course Intellectual Property: Inventors, Entrepreneurs, Creators.
The Michelson Institute for Intellectual Property, an initiative of the Michelson 20MM Foundation, provides access to empowering IP education for budding inventors and entrepreneurs. Michelson 20MM was founded thanks to the generous support of renowned spinal surgeon Dr. Gary K. Michelson and Alya Michelson. To learn more, visit 20mm.org.