- Abstract ideas, such as a concept for using software to manage a process, are not patentable on their own unless the invention adds a non-conventional step beyond the prior art.
- Mathematical formulas, natural laws, and natural phenomena cannot be patented because they exist in nature independent of the discoverer, though a tool you invent to study them (such as a telescope filter algorithm) can be.
- Things that already exist in nature, like a newly discovered wild orchid, cannot be patented, but something created through human intervention from natural materials, like a new hybrid orchid, can be.
- An invention doesn’t need to be entirely new — it can be a substantial improvement on an existing thing, but the improvement must be significant enough to be non-obvious and meaningfully different from the original.
- Items already in common use, like a basic hairbrush, cannot be patented as-is, but a version with a significant new function, such as one that also dyes hair, can be.
General Rule For Things You Can’t Patent
There are things you can’t patent. Patents are intended to protect inventors by allowing them exclusive rights to create and reproduce their own invention. Patents encourage inventors to keep inventing and sharing their discoveries with the rest of the world.
As Austin patent lawyers, we can tell you that while there are many things that can be patented, there are many things that can not be patented. These things generally fall into the following categories:
Abstract Ideas:
Say someone has an idea to use software to manage escrow funds for a real estate transaction This isn’t patentable. Abstract Ideas may precede inventions, but they aren’t patentable inventions. The main difference is that patentable inventions must provide a non-conventional step over what is found in the prior art. Even if the invention is intangible, like an app on a mobile device, it should also require more than mere mental steps i.e. not doable by people by just thinking about it.
Mathematical Formulas, Natural Laws, Or Natural Phenomena:
You may discover the chemical makeup of the sun’s corona. You can not patent this discovery. However, you can patent a type of telescope filter algorithm that you created to make this discovery. The difference is that mathematical formulas, natural laws, and natural phenomenon all exist in nature before you discovered them. The corona existed before your discovery and without your discovery. Your telescope filter algorithm, on the other hand, originates from your mind and your work.
Things that already exist in nature:
Things found in nature may not be patented. An explorer in the Amazon rainforest discovers a rare type of orchid. She will not be able to patent that flower. However, she takes the orchid to her lab, crosses it with another orchid native to Hawaii and successfully creates a new hybrid orchid. She can patent the hybrid because it didn’t exist in nature, and could have only have happened through human intervention.
Must be new:
Inventions need not be entirely new things. They can be substantial improvements on existing things, and they must be useful in some way. However, if you’re making an improvement, the improvement has to make the thing substantially different from the previous version such that it changes its very nature. For example, if someone patents a car that runs on water poured into a tank by a person, and you make a car that absorbs water from the atmosphere and collects it in the tank, that’s an improvement. Even if the first car is patented, the second car adds a new and non-obvious improvement that is unique from the first.
Things that are in current, common use:
Things that are already in common use may not be patented unless there’s a significant improvement that makes them somehow different from the original. For example, you cannot patent the hairbrush. You can, however, patent a hairbrush that also dyes your hair whatever color you want when you use it.
Knowing what can be patented and what things you may not patent can be difficult, but the good news is that an
experienced patent attorney can help you determine if your invention is patentable before going through the lengthy and expensive process of patent applications. If you would like to discuss your ideas or inventions, we invite you to contact our Patent Lawyers at (512) 746-7963 to schedule a consultation.
