• December 2019
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What Can Be Patented?

Patents are often a first line of defense when it comes to your intellectual property rights, but exactly what can be patented?  IP rights allow the holder of those rights to prevent others from copying or reproducing the patented elements for a commercial purpose. Interestingly, holding patent rights does not necessary entitle the holder of those rights to produce the claimed elements themselves. Imagine if you come up with a process for fusing atoms and creating energy. The process may be capable of patent, but the Government may restrict the rights of the patent holder to carry out this process. This example simply shows that there is a distinction between the ability to commercialize an invention with patented elements and the ability to prevent others from copying or reproducing those elements for a commercial purpose.

There are three types of patentsUtility Patents, Design Patents, and Plant Patents – each with different criteria around what can be patented.  Understanding these details and how these protections operate are crucial when establishing intellectual property rights.


Utility Patent

A utility patent grants 20 years of protection to an inventor who creates a process, machine,  or composition of matter. The invention must be novel or new. This means that it cannot have been previously disclosed to the public. Public disclosure might include production and sale, publication of the invention, or the subject of a patent filing in the US or other country. The invention must also be non-obvious. This means that a person having ordinary skill in the art (PHOSITA) does not have knowledge of the creative subject-matter. That is, the claimed creative aspects of a process, machine, or composition of matter cannot be commonly known or understood by individuals with technical knowledge or skills in the craft or industry. Lastly, the claimed invention must be useful. This means that it has some identifiable function for which it could be employed. The attribute of usefulness does not measure the value of the functions. It simply makes certain that the patented creation is not too abstract that there is no identifiable purpose or application for the claimed subject matter.

An inventor may make multiple claims for patent protection within a single invention. A claim represents a single novel, non-obvious, and useful attribute of the creation. A claim may stand alone or have any number of dependent claims or attributes that are related but sufficiently distinct to merit patent protection.


Design Patent

A design patent grants 14 years of intellectual property protection to the creator of a novel and non-obvious design or aesthetic for an article of manufacture. There are different types of designs. A design patent application may relate to the configuration or shape of an article, to the surface ornamentation applied to an article, or to the combination of configuration and surface ornamentation. An ornamental design may be the aesthetic appearance of a whole article of manufacture (such as a unique clothing item) or an ornamentation that is part of an article of manufacture. So, the design can be surface-level ornamentation or it can be the overall design (such as shape) of the article of manufacture.

Like a utility patent, the subject matter of a design patent must meet requirements for filing. The aesthetic or ornamental element of the article of manufacture must be novel and non-obvious. Unlike the utility patent, the article does not have to be useful — as design patent rights have nothing to do with the use or utility of the item.

An article of manufacture can only have one claim or element susceptible of design patent protections.  This supports the idea that a design patent applies to an overall aesthetic of an article of manufacture. The same patent rights could not be applied to an unrelated article of manufacture, even if the aesthetic is notably similar.


Plant Patent

A plant patent provides 20 years of intellectual property protection to an individual who discovers or invents a species of plant and asexually reproduced a distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state. The key elements are discovery or invention and asexual reproduction. The idea is that if an individual can identify a plant with unique genetic properties and reproduce exact copies of that plant (with the mixing genetics through seed fertilization), the unique strain is capable of patent protection. As with other types of patent, the plant cannot be already patents, in public use, on sale, or otherwise available to the public prior to filing for patent rights.


Consult a Patent Attorney

Determining what subject matter is capable of patent protection is a difficult task. The experienced patent attorneys at LawTrades can help you in identifying the type of creation that can be patented. They can also help with the process of filing and securing those intellectual property rights.