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What Cannot Be Patented

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I Have Something that Is New, Nonobvious, and Useful - Can I Get a Patent?

You can patent pretty much anything under the sun that is made by man except laws of nature, physical phenomena, and abstract ideas. These categories are excluded subject matter from the scope of patents.   

Why Can't I Patent a Discovery I Made?

Even if you make a new and useful scientific discovery that no one else has ever thought of, you cannot get a patent on it because you did not actually create the fact you discovered. That fact was always in existence, you were just the first to notice it.  However, if you can come up with an invention that makes use of that fact, you can patent the invention.  

What Is Physical Phenomena?

Patent law classifies physical phenomena as products of nature.  Thus, if your invention occurs in nature, it is a physical phenomenon and cannot be patented.   

What Cannot Be Patented? Can I Patent a Living Thing?

It depends. If your invention is a product of nature, it falls under excluded subject matter. However, if your invention does not occur naturally and can only exist through some work on your part, you may be able to get a patent. For example:

  • You cannot patent a species of mouse that you find running around your laboratory
  • You can patent a genetically engineered mouse that you designed for use in cancer research
  • You cannot patent a combination of bacteria with beneficial properties if that combination occurs somewhere in nature
  • You can patent a species of bacteria that you genetically alter to solve a common problem if that form does not occur naturally

Are Products of Nature Included in the List of What Cannot Be Patented?

While simply identifying a product of nature like a gene or a hormone will not be enough to warrant a patent, if you are able to purify the product, you may be able to get a patent. Although genes, hormones, and other chemicals are products of nature, they do not exist naturally in isolated form. Thus, if you are able to isolate, purify, or somehow alter a product of nature, you may be able to patent it.   

What Are Abstract Ideas?

Abstract ideas are concepts like pure mathematics and algorithms. You cannot patent a formula. However, you can patent an application of that formula. Thus, while you cannot patent a mathematical formula that produces nonrepeating patterns, you can patent paper products that use that formula to prevent rolls of paper from sticking together. 

Can I Patent Software?

Although software functions by using algorithms and mathematics, it may be patentable if it produces some concrete and useful result. However, what cannot be patented is software whose only purpose is to perform mathematical operations. Thus, software that converts one set of numbers to another will not be patentable; but software that converts one set of numbers to another to make rubber will be patentable. 

Should I Contact a Patent Attorney?

If you are unsure about what cannot be patented and what can be, you may want to contact an intellectual property attorney. An experienced patent attorney will be able to tell you if your invention is patentable and can guide you through the complicated patent process.

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 05-11-2018 01:17 AM PDT

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