Are Ideas Patentable?
The short answer to the question of whether your idea is patentable is no—it’s not. This is really important: ideas, by themselves, are not patentable. The idea is the first step, but it has to lead to an invention. An invention is usually a physical embodiment of your idea or a set of steps used to accomplish your idea, but the idea by itself is not patentable.
Someone once came to me and said they wanted to patent their idea of curing hiccups. Now, it’s a great idea, but it’s not patentable by itself. The person might have some invention related to curing hiccups, and that might be patentable, or steps a person could take to cure hiccups—and that might be patentable as well. For example, it could be a new drug that cures hiccups. It may be a machine that flashes lights in a specific way that somehow cures hiccups. It may be a machine that someone breathes into that stops hiccupping. There can be any number of types of embodiments that cure hiccups, but the idea itself isn’t patentable. So if you hear me saying “patenting an idea,” what this means is patenting embodiments of that idea.
Determining Patentability: The Four Questions
So once we have thought of some kind of embodiment for your idea, the next thing to figure out is whether this embodiment might be patentable. There are four questions you should ask yourself to answer this:
Is it patentable subject matter?
Is it new?
Is it non-obvious?
Is it useful?
This episode is going to cover just the first question—is it patentable subject matter? The next episode is going to go over the remaining three questions together: new, non-obvious, and useful.
What is Patentable Subject Matter?
Patentable subject matter is the notion that only certain things are eligible to receive a patent. It’s probably easier to first talk about what can’t be patented than what can be patented.
The most common types of things that can’t be patented are laws of nature, abstract ideas, and mathematical formulas. I’ll go over examples of each of these.
Isaac Newton could not have patented gravity because it’s a law of nature. It doesn’t matter that he may have been the first to discover how it works—it’s just not something that’s allowed to be patented. If someone else invented a device that used gravity, and even used Newton’s formulations of gravity, Newton couldn’t demand royalties because gravity by itself can’t be subject to a patent.
Mathematical formulas also can’t be patented. So Einstein could not have patented E=mc². It doesn’t matter that Einstein derived this formula—it’s considered a law of nature, so it can’t be patented.
You also can’t get a patent on something completely natural, even if you discover it. So let’s say you were the first to find and discover a new precious gemstone. Even if you’re the first person to discover this gemstone and no one has ever seen it before, since it’s naturally occurring, it’s not patentable.
What Can Be Patented?
So what can be patented? There’s a famous Supreme Court case where the court said that “anything under the sun made by man” is patentable. So this is really broad, and it includes machines, combinations of things put together in a new way (called manufactures), processes, compositions of matter, and improvements on any of these.
My guess is that for most of you, your idea probably falls into the category of a machine, because you thought of a new device that will change the world.
Besides machines, the next most common type is patenting a process. For example, if you came up with a new process that filters dirty water into drinkable water by following specific new steps that you came up with, you might be able to get a patent for the process of filtering water. Even if you’re just adding one step to a known process of filtering water, it’s possible that you could get a patent on that single step, because improvements are considered patentable subject matter.
The Gray Areas: Software and Business Methods
Now, not everything is clear-cut on whether it falls into patentable subject matter or not. Right now, there are two main gray areas of patentable subject matter, and these are software patents and business method patents. So if your idea involves either computer software or a method of doing business, then you should talk to a patent attorney.
What’s Next
So the next step after you’ve determined that your invention is patent-eligible is to determine whether it is useful, new, and non-obvious, which involves some patent database search—that’s going to be the topic of the next episode.
Until next time, keep on inventing!