What Cannot Be Patented

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 Can I Patent Anything?

According to federal patent laws, a patent is given to an inventor in order to exclude others from “making, using, offering for sale, and/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; and
  • 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:
    1. A concrete result;
    2. A machine;
    3. A chemical or biological composition of matter; and/or
    4. 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; and
  • 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; and
  • 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; and
  • 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; and
  • 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; and
  • 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; and
  • 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; or
  • A delay in filing suit.

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.

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