All ideas can be protected by a patent except for abstract ideas, laws of nature, and natural phenomena. Nevertheless, many of these ideas, although they can be patented, won’t be patented. The invention must be novel and nonobvious on the merits to be patented. The distinction I’m making is between eligibility for patent protection versus patented.
You need to understand this distinction when talking with patent attorneys. Otherwise, you may misunderstand what they’re trying to tell you. They may say that your invention is patentable. You, as a layperson, might interpret that as great news – your invention can be patented. The patent attorney is merely saying that the invention is eligible for patent protection which is a very low bar. They are not saying anything about getting a patent.
How to know if an invention is novel and nonobvious?
To find out if an invention is novel, a patent search is conducted. A search of the patent database is conducted to find out if someone else has already thought of the idea. If yes, the invention is not novel. It is old. The invention will not be patented.
Determining whether an invention is nonobvious is much more difficult. Guidelines exist in analyzing whether an invention is obvious in view of the prior art. You can read MPEP 2141. However, it really depends on the examiner that is assigned to the patent application. Each examiner will apply the law slightly differently.
What types of inventions are eligible for patent protection?
Any type of machine, manufacture, process, or composition of matter is eligible for patent protection. These categories are very broad and have only recently been narrowed to exclude certain software and other types of ideas under Alice v. CLS (2014).
What is a machine?
A machine is any mechanical component or system which works together and has a utilitarian value.
What is a manufacture?
A manufacture is the raw or prepared materials that are given new forms qualities, properties, or combinations whether by hand or machinery. An example is a hammer or nail.
What is a process?
A process is a series of steps that has a utilitarian value.
What is a composition of matter?
A composition of matter is a compound of material composed of two or more substances that are not found in nature.
What types of ideas are not eligible for patent protection?
Abstract ideas, laws of nature, and natural phenomena are not eligible for patent protection. The government does not want you to be able to stop others from using these types of basic ideas with the patient. As such, they will not grant patents on these.
Read my other articles:
- Can I get a patent on my invention? It runs through the four legal requirements to get a patent.
- Can you patent an idea? This article explains the distinction between an invention and just an idea.
What is an abstract idea?
The definition of what is an abstract idea is very fluid. At this moment, no one really knows.
Typically, software inventions are rejected for being directed to an abstract idea.
However, many other ideas can be abstract ideas. The prime example is when you are trying to claim an end result, instead of how to achieve that end result. For example, if you’re trying to claim space travel, that would be an abstract idea. However, if you’re trying to claim a rocket with life support systems, then that would be patentable subject matter.
Legal analysis for what is and isn’t an abstract idea can be found in the Manual of Patent Examining Procedure 2106.
You cannot patent an abstract idea.
What is a law of nature?
An example of a law of nature is E = MC2. Another law of nature is the speed at which an object falls to the ground. You can’t get a patent on the laws of nature.
What are natural phenomena?
An example of natural phenomena is gravity.
What about perpetual motion machines?
A perpetual motion machine is a machine that generates more power than it takes to run the machine. This idea goes against the laws of nature and is impossible to achieve. As such, these machines not eligible for patent protection because they are useless, n
As such, if you have a perpetual motion machine, the only way to get a patent on it is to build a prototype and prove that it works like a perpetual motion machine.