What can be patented?

To be patentable an invention must satisfy three main requirements:

1. It must comprise patentable subject matter (some types of inventions are excluded from patent protection)

Patents can protect technology in diverse areas. Typically, patents are granted for products and processes, including new compositions of materials and new applications of existing products and materials.

In the UK and Europe, the types of inventions that cannot be protected include: discoveries; scientific theories; literary, musical or dramatic works; schemes, rules and methods for performing a mental act, playing a game or doing business; programs for computers; and presentation of information.

However, these exclusions are interpreted narrowly and an invention may still be patentable if it includes subject matter on this list, it just cannot be protected if the invention is directed only to that subject matter. For example, an invention that includes a computer program to control the washing cycle on a washing machine is patentable if it is new and inventive, and is not excluded just because it includes the computer program. Given this complexity, it’s always best to seek professional advice as to whether or not something may be patentable.

2. It must be new and inventive (i.e. non-obvious)

An invention is new if it differs from everything already available in the public domain. Because of this requirement, it is essential (in most countries at least) for a patent application for an invention to be filed prior to any non-confidential disclosure of the invention.

Inventive is defined as not obvious to a person of ordinary skill in the art. Whether or not an invention is inventive (i.e. obvious or not) can be subjective. But an invention does not have to be a major breakthrough to be awarded a patent. Most patented inventions are improvements on existing technology. Again, it is sensible to seek professional advice before concluding that a new product or process is not patentable.

3. It must be industrially applicable

In the UK and Europe, at least, an invention is considered to be industrially applicable if it can be made or used in any kind of industry and so it is rare for an invention to be excluded from protection on this ground.

Although the detailed rules governing what can and cannot be patented vary from country to country, in general, an invention will be patentable if it satisfies these three main requirements.

For professional advice on the patentability of your invention, please get in touch to speak to one of our patent attorneys.

Wilson Gunn