Can you patent that?

This is one of the most common questions I get from new clients. The question is not so much about whether their invention is patentable in terms of novelty and non-obviousness, but whether the subject matter is even eligible for protection. I’ll try to tackle some of the broad categories of inventions that are eligible for patenting in the US.

Keep in mind the following general categories of patentable subject matter [see 35 USC 101]:

  • process
  • machine
  • article of manufacture
  • composition of matter
  • any new and useful improvement of the above

If you’re seriously considering a US patent, don’t forget that it’s a race to the patent office and you cannot patent any invention that you publicly disclosed more than a year ago.

Can you patent a game?

Yes, it may be possible to patent board games, card games and even other sorts of games. Focus on the game rules and articulate how and why your game is different than existing games.

Can you patent a recipe?

Yes, but it may be challenging to show that a recipe is non-obvious, even if the recipe may be new. Remember that you can’t patent anything you’ve

Can you patent a mobile app or desktop app?

Yes, see this post on patenting software.

Can you patent a user interface?

Yes, you can patent UI and UX features. You can also apply for a design patent to protect the ornamental appearance of graphical user interfaces (GUI), i.e., icons.

Can you patent a different use for an existing product?

Technically, it is possible to patent a new use of an existing product. Realistically, it might not be worth trying because you would have to show that the new use is non-obvious. Even if you believe your use to spectacularly non-obvious, the USPTO patent examiner will likely disagree and make it very difficult for you to get a patent.

Can you patent an improvement to an existing product?

Yes, most patents cover improvements over preexisting inventions.

Can you patent a new process for making an old product?

Yes. It would definitely help to describe in detail any key steps that distinguish your process over prior art manufacturing processes, and tie those steps to any benefits (e.g., reduction in costs or time).

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Vic Lin

Vic Lin

Startup Patent Attorney | IP Chair at Innovation Capital Law Group
We love working with startups and small businesses. I help entrepreneurs protect their intellectual property so they can reach their business goals.
Vic Lin

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