What can you patent?

If you already know what a patent is and why it can be useful for your purposes (see article “Why patent?”), you might ask if your invention is patentable or not. In fact, this is a quite frequently asked question, and surprisingly, not that simple to answer.

So, what can be patented? 

Patents may be granted for inventions in any field of technology, from an everyday tool to a power plant, as long as the invention fulfils the patentability requirements. An invention can be a product, such as a machine, an apparatus or a chemical compound, or a process, for example a manufacturing process. If you file a European patent application describing your invention, it will be examined by the European Patent Office (EPO) to see if it is new and inventive and can be patented.*

So, it is up to the patent offices to grant a patent for your invention. 

To find out whether something is patentable, we need to answer multiple questions:

1. Can your idea be regarded as an invention?

   • Firstly, ideas in general cannot be patented, only more concrete solutions. Using a very basic example, you cannot patent the concept of flying. You can however patent a specific, concrete helicopter or airship.

     If you patent a helicopter, someone else might invent an airplane a bit later, and he might be able to patent it too, since you could not patent the idea of flying or every possible aircraft type.

   • Secondly, the followings are not regarded as inventions before the European Patent Office (EPO)**:

     (a) discoveries, scientific theories and mathematical methods; 

     (b) aesthetic creations; 

     (c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers; 

     This point means that computer software on its own cannot be protected by patents in Europe. (Softwares are protected by copyright.) However, an invention that is implemented on computers by means of software - for example, an improved data handling system - is patentable in Europe.

     (d) presentations of information.

     The above have been decided not to be regarded as inventions, since they are abstract (e.g. discoveries or scientific theories) and/or non-technical (e.g. aesthetic creations or presentations of information). However, inventions according to European patent law have to be technical, as you will see the next point.

2. Is your invention technical? 

   The claimed subject-matter must have a technical character. The invention can be in any fields of technology, so there is no restriction in that regard. Furthermore, the invention must be concerned with a technical problem and must have technical features (which are defined in the claim).

3. Does any exception to patentability apply?

   If you answered yes to questions 1 and 2, you probably have an invention, which is of both a concrete and a technical character. However, unfortunately we are not done yet. Even if you have a new, technical and concrete invention, it might not be patentable (again, we are talking about the European patent law), because there are some exceptions defined in the European Patent Convention (EPC) due to different reasons. These exceptions are***:

   • (a) inventions the commercial exploitation of which would be contrary to "ordre public" or morality;

     For example anti-personnel mines and inventions using human embryo.

   • (b) plant or animal varieties or essentially biological processes for the production of plants or animals;

     There is a different type of IP right for protecting new plants, which is Plant variety right. For this reason, a patent cannot be applied for when it comes to plants. In Europe, this type of protection is examined by the Community Plant Variety Office (CPVO).

   • (c) methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practised on the human or animal body;

     This is an important exception, protecting all of us. The simple reason is, a patent must not prevent doctors from curing and preventing illnesses, or performing life-saving surgeries. However, patents may be obtained for the surgical, therapeutic or diagnostic instruments or apparatuses themselves.

4. Is it new, inventive and industrially applicable?

   As mentioned above, a patent will only be granted if the invention also fulfils the requirements of novelty, inventive step and industrial application. You will find more on these requirements in my article “Substantive examination: requirements to obtain a patent”, but shortly, the point is:

   • your invention is new, if it has not been previously disclosed anywhere;

   • your invention is inventive, if it is not obvious to someone expert in that technology;

   • your invention is capable of industrial application, if it is physically possible to make the invention.

   If your invention satisfies the requirements from the points 1-3 above, but you are not sure whether it is really new or inventive, you should absolutely file a patent application, just do more research before you do it. Also, do not forget the value of a prior art search (read article “What to do before filing?”), since it can inform you about the similar patent applications that may be cited by the EPO (or any other patent office) in the search report. Whether your invention is inventive or not, is not necessarily a yes or no question, in many cases a patent attorney is able to convince the EPO that it is inventive.

In addition to the above, there are some other requirements that the invention has to satisfy, but these are rather connected to how the patent specification is drafted and how the claims are phrased. Two examples are: a person skilled in the art must be able to carry out the invention based on the patent application and the claims must be clear. These are checked by the EPO during substantive examination.

What if your invention is not patentable?

If you cannot patent your invention, please remember that there are other ways to protect your idea. On this website we focus on patents, but there are more forms of intellectual property (IP) rights, such as trademark (European union trademark) and design (Registered Community design (RCD) for the EU is a good option) that can be valuable for your business. Good news: obtaining a design protection or a trademark is both simpler and cheaper than a patent. Trademarks are a very popular form of IP (LINK-dictionary) and are widely used for brand protection.

* Here is how the European patent law [Art. 52 EPC] defines patentable inventions:
"European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application."
Read the full legal text here.

** This is Article 52 EPC again, just like above.

*** The exceptions are described in Art. 53 EPC. Read the full legal text here.

**** You can find the full study (71 pages) by the EPO here.

Author: Zsofia Pintz
Published: August 2020
Updated: July 2023