What can I patent? Different & Better Things

An inventor can patent virtually any "new" idea they conceive.

An inventor can patent virtually any “new” idea they conceive.


What can I patent?

What can I patent? Many inventors ask this question.  The short answer is that an inventor can patent almost anything that is both new (i.e., different) and not obvious.  Often nonobviousness can be viewed as showing that the invention’s differences make it better.

In answering “what can I patent,” focus on the differences.

Many of the questions of patentability focus on the type of invention.  Entrepreneurs want to know whether certain classes of things are generally patentable.  Can I patent clothing? Can I patent a plant?  Can I patent an iPhone ap? Can I patent beer? Can I patent a computer program?  Can I patent a food?  In all of these cases the answer is maybe.  Rather than focusing on the type of invention, the inventor would be better served to focus on how it is different.  Whatever the invention is, the inventor should ask these two questions: (1) Is the invention new?  (2) Is the invention better than what already exists?  Here, making a table of differences can help to organize the inventive aspects.  (Also, that table of difference provides a useful springboard for conversations with your patent professional).
Focusing on what makes the invention truly innovative helps bring the patentable aspects to the forefront.  An inventor who can clearly describe what makes the invention different (and the benefits of those differences) probably has something worth defining in a set of patent claims.

An inventor can patent new, better things.

Asking whether a class of invention is patentable is the wrong question to ask.  Rather, ask whether the invention is truly something new.  Something better than all existing technology?

Asking whether a class of invention is patentable is the wrong question to ask. Rather, ask whether the invention is truly something new. Something better than all existing technology?

Taking the examples above, it becomes clear that the class of thing to be patented does not matter nearly as much as whether that thing is new and better.
In the case of beer – an inventor can patent a beer that is somehow different from all beers that existed before it.  Maybe it includes an ingredient (caffeine, salt, taco juice, etc.) that has never been added to beer before.  Such a new addition would make the resulting beer different and patentable.  In a previous article on patenting beer, we noted that craft brewers are constantly experimenting with novel beer ingredients, which makes them a potential source of patentable beer technology.  Who knows, maybe tiger hair will be the secret ingredient to a phenomenal India Pale Ale.  In that case, the first inventor to patent beer with tiger hair would corner the market on those products.
In the case of a computer program – an inventor can patent a computer program that is different from programs that came before it.  Here, it would be helpful to think about how the program works—what it does—in order to determine whether it is different in an non-obvious way.  Does the computer program perform some wildly new type of function the produces a never-before-seen result?  If so, probably patentable.  By contrast, if the program is virtually identical to something that’s been available, chances are it is not the sort of invention that the patent system was designed to incentivize.
Answering “can I patent a food” would be much like the beer example above.  The inventor would need to distinguish the food from all other foods before it.  It would need to be a truly “new” invention.  If that invention satisfies that criteria, then the food could be patented.  Here, it would probably help the inventor’s case to define the food as a composition of matter.

Bottom Line: True Inventions are Generally Patentable

The patent system rewards legitimate steps forward — surpassing the existing technology.  Given this requirement, just about “anything under the sun made by man” can be patented.  Determining how to claim it and how to craft a patent application is the patent professional’s job.  When approaching a patent agent to draft a patent application, begin by pointing out the advances beyond the prior art.  (E.g., “My new sports drink includes an ingredient never used before, which hydrates people faster?”). Asking whether a particular class of things can be patented could likely result in discussing generalities—patent law philosophy.  Most inventors do not hire a patent attorney to discuss patent law philosophy.  Your case for getting a patent would best be served by discussing the specific aspects of why your invention is different and better.

4 Responses to “What can I patent? Different & Better Things”

  1. Dan O'Brien says:

    I understand different and new, but what about better? What does better mean? That can be hard to prove, especially for a complex system. Also I may be able to prove it is better in one respect, but not all. So how important is the need to show it is better? Is “different”, “new”, and “useful enough?

    • Andrew Chadeayne says:

      Hi Dan – Thanks for your good question. You are 100% correct that “better” is a departure from the literal statutory language. However, I think this minor word change gives inventors a good back-of-the-envelope assessment regarding patentability in view of potential obviousness rejections.
      I use the word “better” to capture a non-obvious difference in properties. In other words, the sort of difference that would rebut a presumption that the claimed invention would be obvious because it would be expected to have the same properties as larger genus of (potentially “obvious to try”) inventions.
      Consider the case where the claimed invention is rejected as “obvious” based on the expectation that it would have the same utility as the prior art (or obvious modifications thereof). That invention would be both (1) “new” and (2) “useful.” But it would not be “better.” Accordingly, for that invention, it could be difficult (but not impossible) to overcome the contention that it would have been obvious to make the invention — based on the expectation that it would have the same utility as the prior art. (It would be useful).
      However, if the invention were different in a way that made it better (improved utility over the prior art), then the “expectation of same utility” theory of obviousness is no longer appropriate — strengthening the case for patentability.

  2. It sure got me when you gave the example of the beer and that a person can patent it if it has ingredients that were not a part of the previous ingredients used. My sister made a few improvements in a lantern, and now she wants to patent it for some reason. I am not sure if she intends to sell them. But anyway, since we are not entirely sure, I think we should consult a professional for it.

    • Andrew Chadeayne says:

      Hi Charles,
      Here’s my two cents:
      First, I’d make sure that your sister has a good reason to pursue a patent. Getting a patent can be a long an expensive process. If your sister does have a good reason (like making and selling a better lantern), then I think consulting a patent professional is a good idea.
      Basically, the first step is making a decision as to whether or not to pursue the invention. If the answer is yes, then do it right.

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