A patent is a written document that gives right of property to an inventor over a product or process that offers a new technical solution to a problem. In order to qualify for a patent, an invention must be “new” and “novel” in nature compared to other existing products and processes. This is the threshold requirement of patentability and is based on the law, which states that “an invention must be new if it is useful and nonobvious to others.”

Under US patent law, certain things are listed as subject matter that can be patented or “patentable subject matter”. Section 101 of Title 35 of the United States Code contains this prescription and reads thus;

“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 therefor, subject to the conditions and requirements of this title.” — 35 U.S.C. 101.

In light of the foregoing definition, patentable subject matter can be summarised to consist of products and processes. Products can be software, machines, manufactures, specialized manufacturing equipment or compositions of matter. Processes are procedures through which a definitive result is achieved and can be business methods. 

Examples of “patentable subject matter” are further discussed below.

New and novel Hardware or Medical Devices

Patent laws grant rights to the inventors of new and novel inventions, which are useful and nonobvious. However, the Patent Act has strict guidelines on what can be patented. The invention must be “new” or “nonobvious,” and it must be a composition of matter. Furthermore, it must be “useful” or “unique” and not have been done before by another person or company.

Inventions must benefit the public. Often, they are modifications of existing products. Patentable inventions include the combination of two or more known parts or methods. An inventive combination of old and new parts or an entirely new use for an old device. These include but are not limited to machines, manufactures, specialised equipment and compositions of matter.

To be patented, the invention must have useful functionality. The prior art must have at least one element of the invention. If a single element or method of the invention is not disclosed in full, the teaching-away argument will not work.

Software

Developing software that is unique in function is a great way to patent your product. However, it is crucial to note that not all software inventions are eligible for patents. In order to be eligible for a patent, your software must meet specific requirements. These include being useful, new, and not obvious. 

Your software must solve a particular problem in an unconventional manner. It also must have claims that don’t preempt every application of the idea. In general, you need to make sure that your invention is not based on an abstract idea. This can be a challenge if you have a unique computer program. Nevertheless, there are several ways to avoid falling into this trap.

One way to make your software patent-worthy is to carefully craft the patent claims. Be specific and explain the technical challenges that the product or service addresses. Then, try to describe the engineering solution you developed. After that, you should carefully consider what kind of patent claim you want to make. Try not to claim all methods of relieving a pain point. Make it specific and focused. This will increase your chances of getting a patent.

When determining whether software is patentable, the first step is to determine whether the claimed invention is a computer. The term “computer” is interpreted as any machine that can execute instructions. In most cases, a computer has one or more processors, memory units, and other auxiliary devices for communication purposes and completing certain tasks. A computer can also have a distributed configuration connected through a communication network.

User Interface

One type of invention that is often overlooked is printed matter. Printed matter is not patented as a part of a patented device, but as a component of a broader process. While a printed piece of paper is not considered an invention, its use in a Graphical User Interface application could be.

Business methods

The US Patent and Trademark Office has a history of denying patents to business methods of inventions. Unlike software programs, business methods of inventions are abstract ideas. As such, the US Patent and Trademark Office has rarely granted patents to business methods. However, it has long advised clients that new business methods were not patentable, and have done so since 1908.

In order to be a valid patent application, a method must be “novel” – unlike any prior knowledge. A method must be novel if it cannot be easily imagined by a person of ordinary skill in the field. If a method is based on the Internet, it will fail the novelty test if it is put into public use or described in a published document. In other words, once the method is exposed to the public, it has lost its novelty.

The patent application must describe the method and the system it uses. This may include a computer or other hardware resources, such as a computer. It must also describe the software code that allows it to operate. A flowchart is highly recommended to convey the core functionality of the invention. Business methods of inventions that can be patented require thorough research to ensure that the method is not already known in the market.

Plant patents

When filing a plant patent application, the applicant must include as much botanical detail as possible. This means a photo or coloration for the plant when that coloration is one of its distinguishing characteristics. Plant parts should be clearly represented in at least one figure in the drawing. The earliest date of the plant’s occurrence should also be specified. The description must be thorough enough to describe the plant’s distinctiveness, as a failure to do so may be grounds for refusal.

Plant patents can be issued for up to 20 years. This is usually enough time to ensure that the patented plant will not be used or sold by anyone other than the original inventor. In addition, patents for plant varieties do not protect technical processes used for propagation. The patented plant will require further examination to determine if it meets the requirements. If it meets all of these requirements, it may be eligible for protection.

Patenting plants is one of the most difficult aspects of intellectual property. This is because the plants themselves are so unique that they can be patented. This protection only applies to plant varieties that are new and distinct. Also, a plant patent can only last for twenty years, meaning that if someone else was to discover the new variety of plant, they would have no option but to reproduce it in a different way.

What things cannot be patented?

There are limitations on what can be patented. The general rule is that things that exist independent of human involvement cannot be patented. For instance, patents cannot be granted on natural phenomena, laws of nature, or on naturally-occurring products. A rainbow, for example, is not patentable. A rainbow machine, however, can be patented. The only difference is that it works, and it is unique. So, while Einstein’s discovery of E = mc² is something new and novel, the math formula itself is not patentable but an atomic machine incorporating the math formula may be patentable.

If you’re unsure of whether your product is eligible for a patent, consult an attorney or patent attorney.