Can You Get a Patent on Your Invention? Here’s How to Know If Your Invention Can Be Patented

Patents are provided for in Article 1, Section 8, Clause 8 of the U.S. Constitution, which states:

The Congress shall have the power… [t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

Do you have an invention that you would like to patent? Do you know if your product even qualifies for a patent?


Utility Patent

Patent-Eligible Subject Matter: The subject matter for a utility patent can be a process, machine, composition of matter, manufacture, or any improvement thereof. To secure a utility patent, you must show that your invention is new, useful, and unobvious over the prior art (the previously known subject matter). The term of a utility patent is 20 years.

• Process is a method of treating material to produce a particular result or product. A process can also relate to a new use of a known composition, apparatus or the like.

• Machine is a device in which energy can be utilized to perform a useful operation (e.g., an apparatus with the required mechanical or electrical elements.)

• Composition of matter is a combination of two or more substances (e.g., chemical elements, chemical compounds, or other components).

• Manufacture is a category for the remaining statutory subject matter that is not a process, machine, or composition.

• Computer program.

• Business method.

Ineligible Subject Matter: Certain subject matter is not patentable such as:

• Laws of nature;

• Physical phenomena;

• Abstract ideas;

• Perpetual motion machine (deemed impossible); and

• No patent may issue on a claim directed to or encompassing a human organism.

Before 1998, mathematical algorithms were ineligible subject matter as well. Hence, a patent could not be obtained for a computer program encompassing an algorithm. However, you can get a patent for a machine that includes a programmed computer or for a process that performs a function utilizing a programmed computer. Thus, an algorithm is patentable if it is applied in a useful way. Specifically, if the algorithm is directed to a machine programmed to provide a useful, concrete and tangible result, it is important to note that an algorithm as merely an abstract idea is still unpatentable.

Design Patent

The design of an article of manufacture that is new, original and ornamental also qualifies for a design patent. Some courts have also required some degree of patentable distinction or inventive faculty (comparable to the non-obviousness requirement for utility patents). No description other than a reference to the drawing(s) is required for a design and the term of the patent is 14 years.

Plant Patent

If you invent or discover and asexually reproduce any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings (other than a tuber propagated plant or plant found in an uncultivated state), you can secure a patent on the plant. The description of your invention should be as complete as possible. The term of a plant patent is 20 years.


You should investigate the patentability of your invention before you file a patent application to determine whether the subject matter of your device, process, or thing has been previously known to others. The test for patentability is whether your invention is new, useful, and unobvious over the prior art. If you are wondering if your invention qualifies for a patent, contact me today.

Ahaji Amos is patent and trademark attorney with 17 years of experience in intellectual property litigation and prosecution at Ahaji Amos, PLLC, a law firm that represents startup and small businesses in all matters including patent prosecution, trademark prosecution, copyrights, trade secrets, oppositions, cancelations, equity funding and commercial litigation. Ahaji Amos, PLLC is dedicated to representing entrepreneurs, inventors, and innovators.  

This article is for information and advertising purposes and does not constitute legal advice.  No attorney-client relationship is formed in the absence of a fully written and executed engagement agreement between Ahaji Amos, PLLC and its clients.  Ahaji Amos can be reached at  More information can be found at

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