Can You Patent Ideas or Theories?

By Lee Hall, J.D.

Can You Patent Ideas or Theories?

By Lee Hall, J.D.

You cannot patent a theory or an idea—not even a unique and useful idea. The person who comes up with a concept must produce an invention or innovation out of the theory or idea in order to qualify for a patent.

Man at desk holding up design of robot next to actual robot

Because a theory is not patentable, the U.S. Patent and Trademark Office (USPTO) will refuse an application that is abstract: a business formula, for example, without an explicit connection to a model that improves a business, society, or the environment.

Patent law does work to protect a process, not just machines and tools, but you must show these things at work and having the defined effect.

Similarly, you cannot patent a law of nature, a scientific theory, or a new discovery in the natural world without modifying it, then defining the nature and scope of its useful benefit—showing it does what you say it does, not what you can conceive of it doing.

If all this sounds somewhat murky to you, you're in plenty of good company. Litigation over what is patentable subject matter is a perennial aspect of patent law.

The Difference Between Ideas and Inventions

To qualify for a patent, an item must be a useful and novel "process, machine, manufacture, or composition of matter, or any new and useful improvement thereof," according to Section 101 of the Patent Act. So while abstract scientific theories, for instance, do not qualify as patentable, the mechanism or the process that integrates such a theory might.

The process of interpretation of Section 101's statutory language by the courts has led to boundaries around the range of what qualifies for a patent. The courts hold that natural laws and phenomena on Earth and abstract ideas are all outside the range of patentable subject matter. A patent suits a novel and useful mechanism—not someone's suggestion of the new mechanism. Thus, we see the requirement for the patent applicant to submit the detailed description of the actual mechanism and its workings.

Possible Changes Ahead

The notion that some concepts are not developed enough to be patentable continues to be a major topic for the courts.

The main reason why abstract ideas are a point of contention in patient law is that zealous application of this basis for rejection can work against the kind of innovation that society needs most. All inventiveness begins with the theory or idea that sparks the innovation. Innovators might well need protection for promising ideas in a time when inventors must approach investors or companies in the early stages of readying their concepts for the marketplace.

The Supreme Court has acknowledged that "there are at least some processes" developed for doing business that can constitute patentable subject matter under the Patent Act's Section 101. And, if those methods can be transferred to deal with cybersecurity, environmental protection, or other critical challenges, we could see evolution in this area of patent law.

A concept alone, no matter how promising, is unlikely to get the patent examiner's approval. The innovator should understand this legal reality and, unless patent law changes, continue to incorporate theories or ideas into inventions or innovations that can be useful others.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.