What can be patented?

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

Although the detailed rules governing what can and cannot be patented vary from country to country, in general, 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);
  2. It must be new and inventive (i.e. non-obvious);
  3. It must be industrially applicable.

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.

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.

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.

Wilson Gunn can advise on all aspects of intellectual property protection. Please get in touch to speak to a member of our team about patent protection.