Can You Patent Ideas or Theories?

By Christopher Faille

There is a long-standing legal principle in the United States, based on but not explicitly found in the language of the Patent Act, that "abstract ideas" cannot provide subject matter for a valid patent. What exactly this means is quite unclear. Litigants and courts have to thrash it out, case by case.

There is a long-standing legal principle in the United States, based on but not explicitly found in the language of the Patent Act, that "abstract ideas" cannot provide subject matter for a valid patent. What exactly this means is quite unclear. Litigants and courts have to thrash it out, case by case.

Statutory Language

A first screen for what is patentable subject matter is the wording of section 101 of the Patent Act, which requires a "new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." This language excludes what one might call a "useless" idea or theory, but to the extent an idea or theory can be both new and useful, and to the extent it is embodied in a machine, manufacture, or so forth, it passes this threshold.

File a provisional application for patent online. Get Started Now

Supreme Court

The Supreme Court, in a line of precedents going back to 1852, has long held that "abstract" ideas are not patentable. In the case it heard that year, the patent holder claimed as its invention a certain combination of techniques used to create pipes out of lead. In the course of a wide-ranging discussion, the court said: "A principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented...."

More Recent Application

What ideas are too abstract to be patentable remains a commonly litigated issue in the 21st century. In 2010, the Supreme Court decided against two men (Bilski and Warsaw) who had together filed a patent application on a method of hedging risk in the purchase of energy-related commodities such as coal or natural gas. The court said that this was a mere abstract idea.

Few Bright Lines

The Supreme Court's Bilski decision didn't give any definitive test for abstractness, and it specifically rejected some possible bright-line standards. For example, it would not say that "business methods" in general cannot be patented. The statute "leaves open the possibility that there are at least some processes that can be fairly described as business methods that are within patentable subject matter under section 101." Though there are still few bright lines, the general trend in recent years has been toward a narrower understanding of what is patentable, a broader understanding of some of the doctrinal limits such as the exclusion of abstract ideas.

Laws of Nature

A related idea is that "laws of nature" are not subject to patent. For example, it is an observed fact that the human body metabolizes certain substances in a predictable way. Nobody can own that regularity/law. No one, then, can enforce a patent for a medical procedure that consists entirely of observing the effects of that regularity.

File a provisional application for patent online. Get Started Now
Subject Matter Process for a Patent

References

Related articles

What Are Patents?

Article I of the U.S. Constitution empowers the federal government to grant patents to “promote the progress of science and the useful arts.” A patent is a property right that enables an inventor to prevent others from using his invention for a limited time. In essence, it gives the inventor a monopoly and the exclusive rights to sell, use, or license the invention. To receive a patent, the inventor must publicly disclose how the invention works. By providing legal protection to new inventions, patents help encourage investments in research and development without fear that another will steal their hard work.

Does a Copyright Protect an Author's Creative Idea?

Copyright laws give authors and other creators property rights for their works of original authorship, including the rights to reproduce, distribute, and display their works. One of the fundamental principles of copyright law is that a copyright protects expressions but not creative ideas. Although this basic rule seems straightforward, it may be difficult to apply in some cases.

Advantages & Disadvantages of Issuance of Business Patents

Patents are essential to the health of businesses that rely on research and development because they give the inventor the right to exclude others from making, using or selling the invention. This right to exclude others enables a company to have a corner on a particular market. All patents include claims, which precisely define what is novel about the invention. One type of claim -- the business method claim -- remains controversial among inventors, patent attorneys and courts.

Start here. LegalZoom. Legal help is here. LLCs. Corporations. Patents. Attorney help.

Related articles

United States Software Patent Law

A software patent is not a special type of patent -- it is simply an ordinary patent that protects software. As a work ...

Patent Options

Not all patents are created equal under U.S. federal law. In fact, the United States Patent and Trademark Office, or ...

Patent Law in Biology

Whether it's a patented medical device, drug, plant, or gene product, it is likely that the resulting patent involved ...

Elements of a Patent

A patent gives an inventor the legal right to prevent others from making, using or selling the inventor’s new ...

Browse by category