As the saying in the patent world goes, anything under the sun, made by man, can be patented. That means that just about anything that is not naturally occurring can be the subject of a granted patent. In fact, there are even special patents that are issued to protect new species of plants that have been created through human cultivation.
The United States statute that governs patentable subject matter is 35 U.S.C. 101 and reads, in part, “[w]hoever 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 therefor…” Pretty broad, right? If you are looking for basic guidance as to whether your invention is the type of thing that can be granted patent protection, the answer is probably yes. If your invention actually does what it is supposed to do and is not simply a naturally occurring phenomenon it likely qualifies as patentable subject matter.
However, in many cases the question is not whether or not your invention is directed to patentable subject matter but, rather, whether or not your invention is “new” in the eyes of the patent system. Performing a patent search is the best way to answer this question and generally recommended before embarking on the journey of filing a patent application.
Kelly G. Swartz is a registered patent attorney licensed to practice in Florida and before the United States Patent and Trademark Office. Her practice is limited to intellectual property matters including patents, trademarks, copyrights, and trade secrets.