What Can Be Patented?
Under U.S. law, any person 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.
"Process” means a process, act, or method, and primarily includes industrial or technical processes.
“Manufacture” refers to articles that are made, and includes all manufactured articles.
“Composition of matter” relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds.
“Useful” means the subject matter has a useful purpose and also includes operativeness; that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.
More information can be found at General Information Concerning Patents by the USPTO.
A short but useful tutorial is also provided by the University of Minnesota Libraries.
THREE-MINUTE LEGAL TIPS: THE IMPORTANCE OF PATENTS
by Toshiko Takenaka, W. Hunter Simpson Professor of Technology Law at the
University of Washington School of Law. Published:
Types of Patents
A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States.
What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. Once a patent is issued, the patentee must enforce the patent without aid of the USPTO.
Generally, the term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions. Under certain circumstances, patent term extensions or adjustments may be available.
There are three types of patents:
1) Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;
2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and
3) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
Utility and Plant patent applications can be filed either as Provisional or Non-Provisional.
A utility patent is a type of patent that may be granted to anyone who invents or discovers a new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvements of these.
The elements of a nonprovisional utility application include the following and should appear in the following order:
Application transmittal form (access form)
Fee transmittal form (access form)
Application data sheet (more details)
Specification (more details)
Drawings (more details)
Executed oath or declaration (more details)
For more information, see A Guide to Filing a Utility Patent Application.
This is a quick, inexpensive way for you to establish a U.S. filing date for your invention. A provisional application is not examined and lasts for 12 months. Before the 12 month date after filing, a non-provisional application must be filed to continue your patent application. If a non-provisional application is not filed, the provisional application becomes abandoned.
A provisional application provides the means to establish an early effective filing date in a patent application and permits the term “Patent Pending” to be applied in connection with the invention.
Provisional applications may be filed for either utility or plant patents, but not design inventions.
Provisionals have fewer requirements than non-provisionals. The filing date of a provisional application is the date on which a written description of the invention and drawings (if necessary) are received in the USPTO. To be complete, a provisional application must also include the filing fee and a cover sheet specifying that the application is a provisional application for patent. A surcharge is required for filing the basic filing fee or the cover sheet on a date later than the filing of the provisional application. Claims and oath or declaration are NOT required for a provisional application. Provisional applications are NOT examined on their merits.
The claimed subject matter in the later filed nonprovisional application is entitled to the benefit of the filing date of the provisional application if it has support in the provisional application. The 12-month pendency for a provisional application is not counted toward the 20-year term of a patent granted on a subsequently filed nonprovisional application that claims benefit of the filing date of the provisional application.
A design patent may be granted to any person who has invented any new and non-obvious ornamental design for an article of manufacture. The design patent protects only the appearance of an article, but not its structural or functional features. The proceedings relating to granting of design patents are the same as those relating to other patents with a few differences.
A design patent issued after May 13, 2015 has a patent term of 15 years from the date of patent grant, and no fees are necessary to maintain a design patent in force.
The drawing of the design patent conforms to the same rules as other drawings, but no reference characters are allowed and the drawing should clearly depict the appearance, since the drawing defines the scope of patent protection.
The specification of a design application is short and ordinarily follows a set form. Only one claim is permitted, following a set form that refers to the drawing(s).
A plant patent may be granted to anyone inventing or discovering and asexually reproducing any distinct and new variety of plant. This includes cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber-propagated plant or a plant found in an uncultivated state.
Asexually propagated plants are those reproduced by means other than from seeds, such as by the rooting of cuttings, layering, budding, grafting, inarching, etc.
An application for a plant patent consists of the same parts as other applications. The term of a plant patent is 20 years from the application filing date in the United States, or if the application contains a specific reference to an earlier-filed application, from the date the earliest such application was filed.
The filing and issue fees on plant applications can be found in the fee schedule. For a qualifying small entity, most fees are cut by half. For a qualifying micro entity, most fees are reduced by 80%. Plant patent applications may be published, but the fee is not reduced for small entities.
The Plant Variety Protection Office (PVPO) provides intellectual property protection to breeders of new varieties of sexually reproduced, tuber propagated, and asexually reproduced plant varieties. With reference to tuber propagated plants, for which a plant patent cannot be obtained, the term "tuber" is used in its narrow horticultural sense as meaning a short, thickened portion of an underground branch. Such plants covered by the term "tuber propagated" are the Irish potato and the Jerusalem artichoke. This exception is made because this group alone, among asexually reproduced plants, is propagated by the same part of the plant that is sold as food.
The genes, traits, and parts of a plant, as well as varieties, may also be protected with a utility patent.
The elements of the plant application, if applicable, should appear in this order:
- Plant application transmittal form (access form)
- Fee transmittal form (access form)
- Application data sheet (see § 1.76) (more details)
- Specification (more details)
- Drawings (in duplicate) (more details)
- The inventor's oath or declaration (more details)
For more details, see the publication General InformationAbout 35 U.S.C. 161 Plant Patents and MPEP § 1600.
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