Is My Idea Patentable?

Person holding lightbulb in hand
The following is a transcript of Episode 2 from the "Patenting for Inventors" Podcast.

The short answer to the question of whether your idea is patentable, is "no, it’s not." Now 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 steps involved used to accomplish your idea, but the idea by itself is not patentable.

Someone 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, and stops hiccupping. There can be any number of types of embodiments of inventions 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.

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, and there are four questions you should ask yourself to answer this. Is it patentable subject matter? Is it new? Is it non-obvious? And is it useful?

This episode is going to just cover the first question, is it patentable subject matter, and the next episode is going to go over the next three questions together, new, non-obvious, and useful.

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 common types of things that can’t be patented are laws of nature, abstract ideas, and mathematical formulas, and 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 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 get a patent on something completely natural, even if you discover it. Let’s say you were the first to find and discovery 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 is not patentable.

What can be patented? There’s a famous Supreme Court case where the Court said that “anything under the sun made my man” is patentable. This is really broad, and it includes machines, combinations of things put together in a new way, called a manufacture, 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 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.

Not everything is clear cut on whether it falls into patentable subject matter or not, and right now there are two main gray areas of patentable subject matter, and these are software patents and business method patents. If your idea involves either computer software or a method of doing business, then you should talk to a patent attorney.

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 searching, which is going to be the topic of the next episode. Until next time, I’m Adam Diament of Diament patent Law, and keep on inventing.