What ideas or concepts can you patent? First, you must know that abstract ideas, mathematical formulas, and natural discoveries cannot be patented. These ideas are not applicable in patent law as they are not tied to an application, process, or real-world use. Moreover, natural discoveries cannot be patented, and you cannot file for a patent for them. Nonetheless, if you’re an inventor or have a creative idea, you can always file a patent.
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- Natural Discoveries Are Not Patentable
- Inventive step of ‘non-obviousness’
- Inventive step of ‘inventive step’
- Industrial applicability
Natural discoveries are not patentable
What can’t be patented are natural phenomena, laws of nature, and products that occur in nature. Let’s say, for example, an explorer discovers a new species of orchid in the Amazon rainforest. They then cross this new species with a Hawaii-native orchid, creating a hybrid. This new hybrid orchid cannot be patented, since it didn’t exist in nature and only existed because of human intervention.
In other areas of the law, the Supreme Court has struggled with defining what is natural. Its early decisions against patenting abstract ideas and concrete applications incorporated a ban on patenting “products of nature.” While this prohibition is still in place today, it has been difficult to define “natural” in a way that gives natural terms legal meaning. But that hasn’t stopped courts from interpreting natural terms.
While natural phenomena are not patentable, the new guidelines for examiners suggest that some kinds of processes are. For example, the process of isolation and purification no longer counts as a modification enough to be patentable. Patent examiners are now instructed to determine whether the patent application claims are significantly different from the exceptions listed in the judicial opinion. The guidelines have also been issued with a view to simplify the process of patenting natural phenomena.
Moreover, discoveries may not be patented, even if they result in a patented article or process. For example, a material discovered for its ability to withstand mechanical shock is not a patented invention, but a claim to develop a railway sleeper using the same material is a patented invention. This rule is widely applied to the field of atomic energy. However, some natural discoveries are excluded from the patenting process.
The Supreme Court acknowledged this tension in Prometheus, by saying that granting patents to abstract ideas and laws of nature would stifle innovation. This is because the patent laws would preclude new inventions in unjustified areas. Ultimately, the courts noted that this rule is consistent with the Constitution. Therefore, it is hard to decide whether natural discoveries should be patented. It will come down to the individual and the context in which they were made.
What makes an idea/concept patentable?
- Inventive step of ‘non-obviousness’
- Inventive step of ‘inventive step’
- Industrial applicability
Inventive step of ‘non-obviousness’
Inventive step in patenting an idea or concept means that the invention must not have been known to others prior to the date it was patented. The term ‘non-obvious’ is codified in 35 U.S.C. SS103. Essentially, this means that the mechanism must have been novel and unknown to others in the field.
To determine whether an invention is new or not, the patent examiner will compare the invention to prior art. If the previous invention was not new to the public, the inventor must show that the new invention is better than the existing ones. Many patents include information explaining why the invention is superior to the prior art. The more evidence the applicant can provide, the more likely it will be accepted for a patent.
‘Intellectual step’ is a less objective criteria than ‘non-obviousness.’ To test for inventiveness, one needs to ask, “would this idea or concept be obvious to someone skilled in the relevant art?” ‘Skilled’ refers to a fictional character with knowledge and experience in the field. Such a person will be good at his job but may not possess a great deal of creativity.
Inventions in the category of ground-breaking inventions provide technological solutions that cannot be achieved through existing means. Examples of such products include the compass, paper, printing technique, gunpowder, steam engine, filament lamp, radar, and laser. Combining several well-known solutions creates a new solution that is functionally indistinguishable from the prior art.
‘Non-obviousness’ is a crucial requirement in patent prosecution. In other words, the patent holder must demonstrate that the patented idea was not made by another person, who has the necessary skill. This step is critical to the viability of a patent. A patent holder who has developed a new product or process is able to sell the product or service.
A patented peanut butter and jelly sandwich is not ‘obvious’. The crimping method used to seal the sandwich was well known and obvious. Therefore, the invention failed the non-obviousness test because it would have been obvious to a person of ordinary skill in the field. If this was the case, an ordinary person with the necessary knowledge would have modified, combined, or motivated the combination of prior art to create the claimed invention.
Inventive step of ‘inventive step’
When applying for a patent, an applicant must show that his idea or concept is an improvement over existing technology. The rule of inventive step is intended to encourage innovation and grant monopolies to inventors. In this way, patenting an idea or concept is an excellent way for an individual to protect his work. The inventive step requirement ensures that the improvement made is novel and adds a significant technical effect.
Generally, an inventive step involves going beyond what is known, and should not be an obvious improvement. For example, mixing water and vitamins before planting a garden doesn’t qualify as an inventive step, but it is a common gardening practice. This approach is considered novel, and the applicant can then patent it. The EPO defines an inventive step as “moving far beyond expectations of technology.”
Inventive steps are essential in determining whether an idea or concept is truly original. For instance, in patent challenges, one side will argue that the invention is new, while the other side will argue that it was an inventive step. These cases highlight the importance of non-obviousness rules. The actavis case is a perfect example of this. Innovators who fail to prove their idea was not new will be denied the patent.
Although the rules regarding the inventive step are different across jurisdictions, the purpose behind each is the same. It encourages individuals to come up with new ideas and protect them, as well as to profit from them. While many people would like to buy an idea that already exists, the patent office will not grant it, as it tends to focus on the money side of the system. This will cause a great deal of waste, which is why companies should consider hiring an attorney to handle this case.
Industrial applicability
A patent must specifically state that the idea or concept has industrial applicability. In general, technical inventions are tangible, which makes industrial applicability obvious. In contrast, inventions in the Life Sciences tend to be more abstract and intangible, with no obvious industrial use. Examples of such intangible inventions are DNA sequences. Nevertheless, there is a growing consensus that the idea or concept has industrial applicability, and patenting it is the best way to protect it.
The European Patent Office (EPO) stipulates that an invention must be able to be used in an industrial environment. This requirement can be met with a persuasive argument about industrial applicability. In addition, most inventions solve a technical problem that has existed for quite some time. Despite the requirement to demonstrate industrial applicability, most inventions are not rejected because of this requirement. But the application of the idea or concept must be obvious to the public in order to receive a patent.
There are several reasons why an invention cannot be patentable. First, if the idea or concept is not practical, it is not applicable to industrial use. This is particularly true of mechanical inventions. For example, a PMM does not adhere to the laws of physics. Secondly, there is not sufficient disclosure to make it usable to the public. It also lacks industrial applicability. In short, it is impossible for the general public to successfully carry out the invention.
Secondly, the invention must be sufficiently useful to meet the requirements for patentability. For an invention to be eligible for patenting, it must be novel, inventive, and susceptible to industrial application. The third criterion, industrial applicability, is based on the formality of the invention. The Life Sciences category is an exception. The underlying purpose of the patent is to protect the idea or concept from competitors.
