According to federal patent laws, a patent is given to an inventor in order to exclude others from “making, using, offering for sale, or selling the invention” in the United States. In other words, a patent is given to an inventor in order to protect their invention.
Patents generally exist for twenty years, and can be applied to any invention in any field of technology. Patents are part of international agreements with the World Trade Organization (WTO); as such, member nations of the organization are expected to recognize and enforce legal patents.
Generally speaking, in order to receive a patent from the U.S. Patent and Trademark office, the invention must meet the following patent requirements. It must be:
- New
- Unique
- Generally unobvious
There are different types of patents available depending on the item that you wish to patent:
- Utility Patent: Generally speaking, the invention must be a process or method with:
- A concrete result
- A machine
- A chemical or biological composition of matter
- An invention improvement
- It is important to note that, in order to qualify for a utility patent, the invention must also be moderately useful.
- Design Patent: With few exceptions, the design must be novel, non-obvious, and nonfunctional
- Plant Patent: Plants that you create can be patented; however, the plant must be novel and non-obvious
Some examples of what cannot be patented include:
- Naturally occurring substances
- Laws of nature
- Ideas
- Calculation methods.
What cannot be patented will be further discussed later on.
The U.S. Patent and Trademark Office is the agency that is responsible for receiving applications for patents, as well as making patent determinations. An inventor must submit an application to the Patent and Trademark Office, as well as attach specific drawings and a plan of the proposed invention; they must also pay a fee.
Additionally, the plan of the invention must adhere to a considerably rigid and specific form. After the application is reviewed, the Patent and Trademark Office will generally question the applicant regarding any objections that the office may have.
It is important to note that as of September 2011, the inventor who first filed the patent will receive the exclusive rights. Prior to September 2011, patent protection was granted to those who first invented the technology or product.
Why Can’t I Patent a Discovery I Made?
To reiterate, you can patent nearly anything, except:
- Laws of nature
- Physical phenomena
- Abstract ideas
What this means is that, 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 that you discovered. This is because that fact was always in existence; you were simply the first person to notice it. However, if you can create an invention that utilizes that fact, you can patent the invention.
As was previously mentioned, there are different kinds of patents that can be obtained from the United States Patent and Trademark Office (USPTO). In terms of whether it is possible to patent an idea, in all instances of a patent, the object or idea must be:
- Distinct
- Particular
- New to both the market and the patent catalog
What Cannot Be Patented? Can I Patent a Living Thing?
Patent law classifies physical phenomena as products of nature. As such, if your invention occurs in nature, it is a physical phenomenon and cannot be patented.
Whether you can patent a living thing largely depends on how the living thing may be classified. If your invention is a product of nature, it is considered to be excluded subject matter when getting a patent. 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.
Some examples of this concept include:
- You cannot patent a species of mouse that you find in 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 else in nature
- You can patent a species of bacteria that you genetically alter in order to solve a common problem, if that form does not occur naturally elsewhere
While simply identifying a product of nature such as 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. This is because while genes, hormones, and other chemicals are products of nature, they do not exist naturally in isolated form. As such, if you are able to isolate, purify, or somehow alter a product of nature, you may be able to patent it.
Abstract ideas are concepts such as pure mathematics and algorithms. You cannot patent a formula.
However, you can patent an application of that formula. What this means is that while you cannot patent a mathematical formula that produces non repeating patterns, you can patent paper products that use that formula in order to prevent rolls of paper from sticking together.
Can I Patent Software?
While software functions by using algorithms and mathematics, it may be patentable if it produces a result that is both concrete and usable. However, what cannot be patented is software whose only purpose is to perform mathematical operations. As such, software that converts one set of numbers to another will not be patentable. Software that converts one set of numbers to another in order to make rubber will be considered patentable.
A patent lawsuit is a specific type of lawsuit involving intellectual property laws. Most patent lawsuits involve the illegal or unauthorized use of a patent or patented material, and are generally referred to as patent infringement lawsuits.
Proving patent infringement is a considerably complex process that involves several steps. An example of this would be how it involves determining the scope of the patent’s protection, and examining whether the defendant infringed upon the protections. The plaintiff will also be required to prove that they suffered losses as a result of the infringement.
Potential legal remedies may include patent infringement damages, which are designed to reimburse the patent holder for any losses caused by the infringement. An example of this would be how the defendant may be required to pay damages for lost profit, as well as for lost business clientele.
It is important to note that the damages claims must be:
- Calculable
- Provable, meaning not speculative in nature
- Supported by evidence
Another common remedy in a patent lawsuit would be an injunction to have the offender stop producing or using the patented material. They may be required to pull their products from a marketing line, or change a recipe or formula, and related materials may be subject to confiscation.
Patent infringement defenses available to the defendant will largely depend on the circumstances of each specific case. An example of this would be how it may be a defense if the defendant can prove that they were actually authorized to use the patent or patented invention. They could do so by proving the consent of the patent holder for the usage.
Other defenses may include:
- An invalid patent
- Unfair on inequitable conduct of the plaintiff
- A delay in filing suit
Have There Been Any Recent Changes to Patent Laws?
Yes, there have been some recent updates and changes to United States patent laws in addition to some guidelines provided by the United States Patent and Trademark Office (USPTO) regarding patents and artificial intelligence (AI).
Although many laws in existing patent statutes remain unchanged, the interpretation of how artificial intelligence (AI) interacts with patent inventorship and infringement has changed, such as with AI-assisted inventions.
Guidelines from the United States Patent and Trademark Office (USPTO)
The USPTO issued the Revised Inventorship Guidance for AI-Assisted Inventions in November of 2025 that provided AI-related guidelines, including:
- AI is not an inventor and is only a tool
- Only humans can be inventors
- Even if AI played a significant role in the research and development process, the AI cannot be listed as an inventor or as a co-inventor
- The 2024 guidance that allowed for AI to be a potential co-inventor if a person made a significant contribution, called the Significant Contribution Test, was reversed in the 2025 guidance
- There is a focus on human conception of inventions
- The conception is the formation in the mind of the inventor of a permanent and definite idea of the complete and operative invention
- AI is treated similar to simulation software, laboratory equipment, and research databases
- In other words, AI is treated as a tool that is used by people to achieve a result
- When an AI system is listed as an inventor on a patent application, that application will be rejected
Legal Trends Related to Patents and AI
The United States Court of Appeals for the Federal Circuit held in April of 2025 that taking an abstract idea, such as schedule or mapping, and applying intentional machine learning to that idea does not make it a patent-eligible invention. In order for a patent for machine learning to be eligible, it must make a specific improvement to the machine learning model or AI itself.
These recent updates mean that patents which rely heavily on AI-generated core ideas as opposed to human generated ideas will be more vulnerable to invalidation challenges at Patent Trial and Appeal Boards (PTABs) and in court. A patent may be at risk of invalidation if there is not evidence that a human directed the AI, structured the prompts, and analyzed the output to create the final invention.
Proposed Patent Legislation
Some patent-related legislation was proposed in 2025, including the Patent Eligibility Restoration Act (PERA). This legislation sought to redefine patent subject matter eligibility by expanding the patentability of diagnostics, AI, and biotech. This legislation can impact AI-related software patents.
PERA also seeks to get rid of judicially created exceptions for laws of nature, natural phenomena, and abstract ideas. The Act proposes replacing those exceptions with five specific statutory exceptions.
The Executive Order called Removing Barriers to American Leadership in Artificial Intelligence was signed in January of 2025. This order seeks to bolster national security, bolster economic competitiveness, and accelerate United States AI innovation. It encourages a pro-patent environment and maintains the requirement for human inventorship.
United States patent laws are being updated and changed as technology advances and expands. In addition, patent laws may be updated when a new presidential administration takes office.
Due to the potential for regular update and revision of patent laws, it is important for individuals to obtain advice from patent attorneys for any patent-related questions or concerns they have to make sure they are complying with the latest patent laws, updates, and requirements.
Should I Contact a Patent Attorney?
If you have questions regarding what can and cannot be patented, you should consult with a patent attorney. An experienced intellectual property attorney can tell you if your invention is patentable, and will guide you through the patent process.
You can use the lawyer-client matching services provided by LegalMatch at no cost to locate a patent lawyer in your area in a short amount of time by completing the online submission process. Due to the complexity of patent issues and the frequent updates to patent laws, it is important to have a patent lawyer handling your issue. Find your licensed and prescreened patent attorney on LegalMatch today.
