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Situations where something will not receive a patent

Creating is exhausting, time consuming, resource intensive and massively rewarding. When you put the necessary effort into creating something new, it stands to reason that the first thing you will want to do is patent it. Patenting is one of the most common ways you can claim something as your intellectual property and preclude others from making, selling or otherwise using your creation.


Not everything is automatically patentable, though. There are a variety of criteria that your subject must satisfy in order to be considered for a patent. These are four of the primary considerations a patent application will examine.


The subject must be real

As explained by US patent law, anyone who “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." It may seem obvious, but this means that the subject of your patent must exist; it cannot only exist as an idea. Broadly speaking this includes:

  • A new process, such as a new, more efficient way to inject plastic into moldings

  • A machine, something with circuitry or moving parts, such as a monitor or engine

  • A manufactured object, an item that accomplishes something without moving parts, such as a pen

  • A new compound, such as a research chemical or new pharmaceutical

  • An asexually reproduced and new variety of plant, such as a new strain of corn not derived from grafting

If you are unclear on whether the subject of your patent falls into any of these categories, speaking to an experienced attorney is one of the best ways have your specific questions answered.


The subject must be new

What you are patenting must be different from other existing patents. One of the main points of a patent is to prevent others from copying your process or product, meaning you can’t do the same to others. This novelty requirement can be complicated, so speaking with a professional before proceeding is advisable.


The subject must produce a result

What is considered a “result” can be subjective, but this is a requirement that is generally difficult not to satisfy. A subject with very flawed or impossible logic, such as a non-functioning time machine or a process of how to fly without assistance, will likely be rejected from receiving a patent. Illegal or very dangerous subjects may also be disqualified.


The subject can’t be an obvious copy

The subject of your patent must also not be an obvious copy. A power tool produced in a different color or two different smartphones attached to each other will not have patents yet, but if “the average person” would be able to identify the subject as similar to an existing patent, it would almost certainly not be eligible for a patent.


These are four of the main criteria for having a new object or method patented. They are only overviews, though, so be sure to speak to a professional if you have any further inquiries regarding whether you should pursue your patent.


On behalf of Crockett & Crockett posted on Thursday, March 14, 2019. 

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