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Intellectual Property FAQs

How do copyrights, patents, and trademarks differ?

What are the advantages of registering a copyright?

What is "work made for hire"?

When is copying something allowed under copyright law?

Who owns the patent on an invention created by a person as part of his or her job?

Is it necessary to hire a lawyer to submit a patent application?

What is a Provisional Patent Application?

When can the decor of a restaurant be protected under trade dress law?

How can a business prevent an employee from stealing trade secrets when the employee leaves the company?

What kinds of marks cannot be registered as federal trademarks?

What types of inventions can be patented?

What types of inventions can be patented?

The U.S. Patent and Trademark Office (USPTO) issues three different kinds of patents: utility patents, design patents, and plant patents.

To qualify for a utility patent -- by far the most common type of patent -- an invention must be:

  • a process or method for producing a useful, concrete, and tangible result (such as a genetic engineering procedure, an investment strategy, computer software, or a process for conducting e-commerce on the Internet)

  • a machine (usually something with moving parts or circuitry, such as a cigarette lighter, a sewage treatment system, a laser, or a photocopier)

  • an article of manufacture (such as an eraser, a tire, a transistor, or a hand tool)

  • a composition of matter (such as a chemical composition, a drug, a soap, or a genetically altered lifeform), or

  • an improvement of an invention that fits within one of the first four categories.

If an invention fits into one of the categories described above, it is known as "statutory subject matter" and has passed the first test in qualifying for a patent. But an inventor's creation must overcome several additional hurdles before the USPTO will issue a patent. The invention must also:

  • have some usefulness (utility), no matter how trivial
  • be novel (that is, it must be different from all previous inventions in some important way)
  • be nonobvious (a surprising and significant development) to somebody who understands the technical field of the invention.

For design patents, the law requires that the design be novel, nonobvious, and nonfunctional. For example, a new shape for a car fender, a bottle, or a flashlight that doesn't improve its functionality would qualify.

Finally, plants may qualify for a patent if they are both novel and nonobvious. Plant patents are issued less frequently than any other type of patent.

Examples of Patentable Subject Matter

The following items are just some of the things that might qualify for patent protection:

biological inventions business methods
carpet designs chemical formulas or processes
clothing accessories and designs computer hardware and peripherals
computer software containers
cosmetics decorative hardware
e-commerce techniques electrical inventions
electronic circuits fabrics and fabric designs
food inventions furniture design
games (board, box, and instructions) housewares
Internet innovations jewelry
laser light shows machines
magic tricks or techniques mechanical inventions
medical accessories and devices medicines
musical instruments odors
plants recreational gear
sporting goods (designs and equipment)  

What types of inventions are not eligible for patent protection?

Some types of inventions will not qualify for a patent, no matter how interesting or important they are. For example, mathematical formulas, laws of nature, newly discovered substances that occur naturally in the world, and purely theoretical phenomena -- for instance, a scientific principle like superconductivity -- have long been considered unpatentable. In addition, the following categories of inventions don't qualify for patents:

  • processes done entirely by human motor coordination, such as choreographed dance routines or a method for meditation

  • most protocols and methods used to perform surgery on humans

  • printed matter that has no unique physical shape or structure associated with it

  • unsafe new drugs

  • inventions useful only for illegal purposes, and

  • non-operable inventions, including "perpetual motion" machines (which are presumed to be non-operable because to operate they would have to violate certain bedrock scientific principles).

Can computer software qualify for patent protection?

Yes. Even though you can't get a patent on a mathematical formula per se, you may be able to get protection for a specific application of a formula. Thus, software may qualify for a patent if the patent application produces a useful, concrete, and tangible result. For example, the USPTO will not issue a patent on the complex mathematical formulas that are used in space navigation, but will grant a patent for the software and machines that translate those equations and make the space shuttle go where its supposed to go.

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