Even if it can’t be Patented, Protection May be Available !!

Mar 11, 2019

Utility and design patents are a staple of intellectual property protections. It’s a legally issued right which grants the patent holder with exclusive rights to make, use, or sell an invention. Some new patented inventions are directed to unique formulas and solutions created for a particular product or method. However, not all inventions qualify for patent protection. There are a few things you can invent or create that can’t be patented. Here are a few examples:

Discoveries and Theories

In order to patent something, it has to have a “useful, concrete, and tangible result.” This means that something abstract, like thoughts and ideas, cannot be patented. After all, no one wants to get into a sticky situation of putting limits on the thoughts of others. This extends to new discoveries, even exciting, world-changing discoveries, and scientific theories. It even applies to mathematical methods. However, if a concrete invention comes out of those discoveries or theories, that may qualify for patent protection.


This may go hand-in-hand with “discoveries.” Let’s say in exploring you stumble upon a new breed of vegetable: that’s a significant discovery, but you didn’t have anything to do with the creation of that vegetable. It’s just nature, albeit a rare element of nature. However, if you were to take samples of that new discovery back to a lab and crossbreed it with a carrot, and that hybrid vegetable became the darling of every farmer’s market and vegan restaurant, that may qualify for patent protection. That’s your own creation, and you can and should protect it.

Pre-Existing Inventions

It should go without saying that you can’t patent something that’s already been patented (unless that patent has expired, in which case you may be able to buy it). However, you can make an improvement on an existing invention, and that improvement can patent your improvement. There are many valuable patents that were improvements on existing inventions.

Design Patent Protection

Sometimes an invention is directed to changing the look of a common item, such as toothbrushes, cups, brushes, bottles, or sweaters. These inventions can often be protected using design patents.

Trade Secret Protection

Sometimes your recipe, formula or business method cannot be protected with patents, copyrights, or trademarks. Working with an experienced intellectual property attorney you may be able to set mechanisms in place to protect your intellectual property using trade secret law.

Contractual Protection

Some intellectual property is best protected by contracts. Employee contracts are vital in protecting trade secrets and can also help protect your vendors and customer lists. Software development agreements can ensure that only you benefit from the investment you made in developing your software. Vendor contracts can prevent poaching of existing contracts. Proper contracts can play a large role in protecting your business methods and other intellectual property.

For any of your intellectual property needs or for help determining how to protect your business, please contact Garcia-Zamor today.