Patents are a powerful tool for protecting your intellectual property (IP). They give you the legal right to prevent others from making, using, or selling your invention without permission. But before you can secure a patent, your invention must meet specific criteria, something many businesses find confusing. Understanding the difference between what can and cannot be patented is crucial. Here’s a detailed breakdown.
What’s the difference between an idea and an invention?
Having a great idea is just the beginning. To obtain a patent, you must have an invention, and the difference between the two is legally important.
- Idea: A concept, thought experiment or inspiration. For example, “What if I could create a self-driving car?”
- Invention: The practical execution and technical implementation of that idea. For patent purposes, you must clearly demonstrate what you’ve invented, how it functions, and how it can be produced.
Essentially, to create a patentable product, you must show how to solve a problem not just a wish to solve it. Detailed explanations, diagrams and a roadmap for implementing your invention will be required.
What Can Be Patented?
Under UK law (the Patents Act 1977 and the European Patent Convention), a patentable invention must meet three key criteria:
- Novelty: The invention must be new worldwide.
- Inventive step: It must not be obvious to someone with expertise in the field.
- Industrial applicability: It must be capable of being made or used in any industry.
What Cannot Be Patented?
Certain types of work are excluded from patent protection:
- Inventions that are immoral or contrary to public policy – for instance, weaponised tech or illegal drug manufacturing processes.
- Essentially biological processes to produce plants or animals – naturally occurring plant or animal varieties and breeding methods are all excluded.
- Scientific discoveries, theories, or mathematical methods – e.g., you cannot patent gravity or a new equation.
- Artistic works – literary, dramatic, musical, or visual art are protected by copyright, not patents.
- Schemes, rules, or methods – Doing business, playing a game or performing mental acts are all not patentable. Think board game strategies or accounting systems. These fall outside patent protection.
- Presentations of information – Such as data dashboards or organisational layouts.
- Medical or diagnostic methods used directly on humans or animals – You can patent the medical device, but not the method of using it on patents.
- Immoral or unlawful inventions – For instance, weaponised tech or illegal drug manufacturing processes.
- Essentially biological processes to produce plants or animals – Naturally occurring plant or animal varieties and breeding methods are all excluded.
Who cannot apply for a patent?
Someone who isn’t the actual inventor (or doesn’t have rights to the invention)
Patents must be obtained by the person behind the invention. If you’re not the inventor or aren’t assigned the rights (through employment or a contract), you can’t file for a patent. In fact, there is a risk that fraud can arise from this.
Inventions already disclosed or made public before filing
If you’ve already posted your invention on social media or demoed it at a trade show before filing a patent, you may lose the right to patent it. In the US, inventors benefit from a one-year grace period for public disclosure of their invention, but this allowance does not extend to the UK.
People in sanctioned countries
If a person from a sanctioned country attempts to file a patent, they may be denied. The UK agents require the individual to have an OFSI (Office of Financial Sanctions Implementation) license to move the process forward.
Underage inventors without a legal guardian co-signing
While under 18 inventors can create new inventions, they are unable to file a patent themselves. As a patent is a serious legal document, underage inventors don’t have the legal standing to enter binding contracts or make formal legal declarations. Without a legal guardian or parent, they can’t assign rights to transfer the patent to another company or be held legally accountable for fees, deadlines or declarations.
AI systems cannot be named as inventors, a point which has led to real world court cases. Dr. Stephen Thaler attempted to file patent applications around the world for inventions create by his AI system, ‘DABUS’. However, the applications were rejected in many countries on the grounds that an inventor must be a ‘natural person’.
Can you patent food recipes?
Recipes consisting of known ingredients are generally not patentable. For example, cookies with different flavoured chocolate chips do not qualify.
However, if the process meets criteria of novelty, inventiveness, and industrial applicability, it may be patentable. For instance, a new formulation of plant-based meat that mimics animal meat could qualify. Even if a recipe is unpatentable, you can still protect brand names via trademarks (e.g., “Big Mac”) or keep proprietary blends as trade secrets (e.g., KFC’s 11 herbs and spices).
Can I make something that is patented for personal use?
In the UK, you can generally make a patented product for personal use or non-commercial reasons. The Patents Act 1977 states an exception for private, non-commercial use, meaning you can create and use something covered by a UK patent for your own purposes without needing permission from the patent holder.
Can I sell my invention without a patent?
Your invention can be sold without patent protection, but it comes with caveats. Without patenting your creation, you have no legal protection and therefore, other companies could copy it and profit from your original invention. Once your invention is public, you can’t back track and file a patent as you can in other countries. Ultimately, if you’re serious about bringing your product to market, patenting it gives you thorough legal defence.
Can someone steal your invention if you don’t have a patent?
If you don’t patent your invention, others can take it, commercialise it and generate revenue that should have been yours. Not protecting your invention leaves you vulnerable to IP theft. There is also the risk of others filing a patent for your original idea and potentially locking you out of the market and claiming the rights to what you conceived. Revealing your invention publicly not only exempts you from filing a patent but increases the likelihood of competitors stealing it.
Why understanding patent boundaries matters
Ultimately, the world of patents can feel complex, but with the right guidance it can be navigated with confidence. If you’ve developed something genuinely innovative, that goes beyond a simple idea, protecting it with a patent is worth serious consideration. It’s not only about ownership but leveraging commercial value and long-term control over your invention.
However, patents aren’t always the right route and it’s important to know when not to file. Some inventions are better protected as trade secrets, particularly if they’re challenging to reverse engineer. Others might not meet the patentability criteria or may have such a short market lifespan that the time and cost of securing a patent isn’t viable.
Ultimately, patent law exists to reward innovation, not block it. For many businesses, securing a patent is a key part of a broader IP and commercial strategy.
