What can I patent? The Broad approach of US Patent Law

Combustion=not patentable natural phenomenon. Process for building a fire=potentially patentable.

In Greek mythology, Prometheus stole fire from Zeus’ lightning, hid it in a hollow stalk, and gave that fire to humanity. His generosity toward man led to personal regret later. Zeus had Prometheus chained to a rock where he died a painful death only to be resurrected the next day to endure more mortal agonies. Let’s take another look at the Prometheus story from a modern, patent perspective. Ignoring, for the moment, the wrath of a vengeful king of the gods, could Prometheus have profited from introducing humanity to fire by securing a patent on everyone’s favorite chemical reaction: combustion? Alas, no. Poor Prometheus would have found this path a difficult one as well. Where an invention or discovery is new, useful, and non-obvious the patent system will generally grant patent protection to “anything under the sun that is made by man.” And therein lies the rub for poor, would-be fire patentee Prometheus. Patents will not be granted on laws of nature, physical phenomena, or abstract ideas but applications of such principles are fair game!

In order to be patent eligible, an innovation must satisfy three basic criteria. The invention or discovery must be new, useful, and non-obvious. (Each of these concepts have been explained here before, so click through for a refresher!) These core elements stand on another criterion: what is patentable. Patentable “subject matter” is defined by 35 USC §101: Inventions Patentable.

“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent thereof, subject to the conditions and requirements of this title.”

Put simply, this is an awesomely broad law. Congress basically says, “hey, we know there are innovative things out there that we cannot possibly envision. We’re not going to exclude those future innovations from patent protection because we lack imagination.” §101 also explicitly states that improvements on existing technologies are patentable. This is really important to remember from an engineering point of view. Often times, gallons of skull sweat are spent developing improvements to existing technologies rather than creating clean sheet designs. §101 puts those improvements under the umbrella of patentable technologies!

Although patent law covers a broad, expanding area of technical and creative innovation, it does have limits. Laws of nature (e.g. Relativity, gravitation) natural phenomena (e.g. the decay of Carbon 14, quantum entanglement), and abstract ideas (e.g. punish those that hurt others) are not patentable. Such discoveries are “manifestations of … nature, free to all men.” According to legend, Prometheus gave man the general natural phenomenon of fire; combustion. Fire, by itself, would most likely be considered an unpatentable natural phenomenon. If Prometheus taught humanity a specific way of making a fire that process would not run afoul of the prohibition on patenting natural phenomenon. For example, if Prometheus taught people how to rub two sticks together in the presence of kindling and a properly stacked wood pile to make a fire this application of natural laws would be patentable.

Microgravity flames

A candle’s performance in microgravity.

Similarly, candle flames in a microgravity environment are most likely unpatentable natural phenomenon. Because convection forces are negligible in microgravity, a flame source, such as a candle, forms a spherical flame instead of a conical one. However, making toasted marshmallows en masse would be a lot easier around a spherical flame, not to mention being a patentable application of a natural phenomenon! Simply arrange the marshmallows around the flame on a geodesic dome and voila, many evenly toasted marshmallows, perfect for Space S’Mores! 

Because “compositions of matter” are patentable, the creation of new, artificial elements is patentable under 35 USC §101. The most famous example of this is Dr. Glen Seaborg’s invention of element 95, Americium. Dr. Seaborg was issued US patent #3,156,253 in 1964 after successfully synthesizing element 95, an artificial element.

Ellipso patent drawingThe inclusion of satellite orbits in patents is sometimes a contentious matter because orbits are the consequence of natural laws. Since §101 prohibits patenting natural laws or their phenomena, it is unlikely that someone could get an enforceable patent on an orbit with a radius of 22,000 miles MSL. Such an orbit, more commonly known as a geostationary orbit (GEO), is a natural phenomenon of the Earth’s gravitational field. There are however, a plethora of issued patents which apply this natural phenomenon to a specific useful task. For example, these patents disclose methods of utilizing satellites located in orbits like GEO for communications technologies. Other patents describe ways of inserting satellites into GEO.

Happy creating!