There are three types of patents under US patent law: utility patent, design patent, and plant patent. In this blog, I will be mostly talking about utility patent. Now, let’s look at the first question you need to answer before you invest more into your invention: is your invention a patentable subject matter?
To qualify for a patent, your invention must fall within one of the statutory patentable subject matters. According to 35 USC 101, “whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent…” In a nutshell and from a practical point of view, think of it this way:
- “Process” covers both processes and methods including, for example, methods for making a machine or device, a method for bioengineering a bacteria, a method for treating a disease, a business method etc.;
- “machine” covers gadgets, machines, devices and systems including, for example, a gun, a molding machine, a bottle, a light bulb, a chair, a hair clip etc.;
- “manufacture” usually covers things that can be made by human effort—a component, a chemical compound, a synthetic protein, etc.; and
- “composition of matter” usually covers mixtures and formulations including for example, a cosmetic lotion, a pharmaceutical formulation etc.
Under the U.S. patent law, these subject matters are not patentable: laws of nature, physical phenomena, abstract ideas, human, mental process, and inventions that are offensive to public morality. In a nutshell:
- “Laws of nature” cover the theorems, equations, and principles in your math, algebra, calculus, and physics books. These are fundamental rules that the components in the nature follow while interacting with each other; and they are not patentable.
- “Physical phenomena” cover things that you observe in nature such as a rainbow, a cloud, a lake, a tree in its natural state, electricity, sound, color etc. For example, you can patent an application of electricity such as a light bulb, but you cannot patent electricity itself.
- “Abstract idea and mental process” are a bit tricky—the rule of the thumb is that, if your invention is something one cannot see or touch and you can accomplish your invention with just thinking about it or, at most, using a pen and a paper, it’s likely will fall within the “abstract idea” or “mental process” category.
Non-patentable subject matter can be a tricky concept. This is further complicated by the fact that a skilled patent drafter can often turn a seemingly non-patentable subject matter into a patentable one (remember electricity vs. light bulb?). So, if you aren’t sure, please do check with a patent attorney before you kill you invention.
The above description of the patentable vs non-patentable categories has been super-simplified. The fact is that companies and inventors are fighting out every imaginable permutation of each of the categories every day with the US patent office and with each other in courts. The information is only intended to help you to do a ballpark check on your invention. I cannot stress this enough—if your research indicates that your invention has commercial potential, always check with a patent attorney before you kill your invention for “self-guessed” patentability reasons.
Thanks for reading!
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