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Patentable Subject Matter for a Utility Patent

9. What are the specific requirements for a creation to receive utility patent protection?

A utility patent protects how something functions or the method in which it is employed. The subject matter of a utility patent is any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof. It may also include improvements on any of these inventions or discoveries that meet the previously-discussed requirements for patentability. The types of patentable subject matter are as follows:

•    Process – This involves a method of carrying out an activity. It may also involve the effort exerted to effectuate a change in a physical material that alters its character. This includes methods of communicating information, processes or methods (unique sequences of steps) in addressing a business objective.

⁃    Example: A patentable processes could include computer software, a method of engineering a product, a method of valuing stocks, etc.

•    Machine – This is a device or combination of devices that has some function or utility.

⁃    Example: A machine is a functional device (mechanical or electronic), such as a jackhammer or robotic device.

•    Manufacture – An article of manufacture is a finished creation that has utility but may not be mechanical or have moving parts.

⁃    Example: Tupperware is an article of manufacture that has utility but is not a machine. Other examples may include a double-walled thermos, spiral notebook, folded corrugated box.

•    Composition of Matter – Any mixture of ingredients or materials to form a new chemical compound or matter.

⁃    Example: A composition of matter may include special forms of rubber, plastic, glue or cement, and pharmaceutical drugs. It may also include genetically altered (or isolated) aspects of plants or organisms.

While novel inventions or discoveries may be susceptible of patent protection, there are several categories that are not capable of being patented:

•    Naturally Occurring Substances – Examples would include naturally occurring minerals or elements.

•    Laws of Nature – Examples include gravity, inertia, or atrophy.

•    Physical Phenomena – Examples may include the northern lights, earthquakes, tornadoes, hurricanes, and plant or animal growth.

•    Abstract ideas – Examples may include scientific hypotheses, such as the big bang theory or human evolution.

•    Fundamental Truths – Examples may include religious or political beliefs innate to a system of belief or governance, such as the ideas that all individuals are created equal.

•    Calculation Methods – Examples of methods of calculating things include Celsius, Fahrenheit, or Jules.

•    Mathematical Formulas – Examples include mathematical formula that demonstrate or explain activity, such as E=MC2 .

These categories include practically everything made by humans and the processes for making those things. Remember, once the utility patent meets the subject-matter requirement, the application must demonstrate that it is “novel”, “nonobvious”, and “useful”.

•    Discussion: How do you feel about these categories of patentable subject matter? Why do you think the above-listed items are excluded from patent protection? Can you think of other classes of item that should be patentable or excluded from patent protection?

•    Practice Question: Ernie is a psychologist. He devised an effective question and answer examination used to determine the compatibility of a new employee within the current workforce. The actual questions he uses are less relevant than the pattern and consistency of applicant answers. He is wondering if his evaluation method is the type of creation that is capable of patent protection. What do you think?

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