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Patent Filing & Litigation

Can My Invention Be Patented?

Patents cover an incredible range of inventions. Understanding what can and can’t be patented is not always as easy as a few yes or no questions. Instead, we must first look at the different types of patents. Then, we can look at what isn’t included in these categories. From there, we can better understand if a specific invention is patentable.

3 Types of Patents

In order to be patented, an invention must fall under one of these categories outlined by the USPTO.

  • Utility Patent: A utility patent is often what we think of when we think of patents. These patents protect new, useful, and nonobvious processes, machines, manufactures, or chemical compositions. You can also patent an improvement on one of these types of invention.
  • Design Patent: A design patent protects a new, original ornamental design. The design must be “embodied in or applied to an article of manufacture.
  • Plant Patent: A plant patent protects a new, distinct asexually reproduced plant that the patent applicant either invented or discovered. Cultivated sports, mutants, hybrids, and newly found seedlings are eligible.

What Can’t Be Patented?

Perhaps the most common question on this topic is whether or not an idea can be protected with a patent. An idea or suggestion cannot be patented until it is an invention that meets the criteria for a utility or design patent.

The USPTO also excludes laws of nature, physical phenomena, and abstract ideas from patent protection. One industry severely impacted by these restrictions is the software industry, due to the two-part test developed in 2014 as a result of Alice vs CLS Bank. This test determines whether or not a software patent is valid based partially on whether or not the claims describe an abstract concept.

Inventions may not be patentable if they are a detriment to society at large. For example, the Atomic Energy Act of 1954 (42 U.S. Code § 2181) eliminates the ability to patent any inventions used in atomic weaponry. Inventions that are illegal or otherwise bad for the public in other ways may not pass the utility test.