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2.1 – 35 U.S.C. § 101

“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 therefore, subject to the conditions and requirements of this title.”

As previously mentioned in the section 2.0, 35 U.S.C. § 101 defines what can be patented.

In order to be patentable an invention must fall into one of the following categories: machine, manufacture, composition of matter or process.  A process invention can include a product-by-process invention.

For a claim to be proper it cannot site multiple categories (1-4 from above) in a single claim.  The invention can also be an improvement upon a previously invented item from 1-4 above.

Patentable Subjects:

1) Product:  A new, useful and non-obvious machine, manufacture and composition of matter.

2) Process:  A new, useful and non-obvious way of doing, making and using something or a new process for an unpatentable product can still be patentable.  Process claims must utilize steps to obtain the product and not just the result of the process without any steps.

3) Product-by-process:  For product by process inventions, the product is patentable and not the process.  The product is independent of the process used to create the product.  When prior art depicts the same product but through a different process the product is still unpatentable even though the process differs.

4) Living subject mater is patentable but human ingenuity must be used to invent the new matter.

One cannot obtain a patent to practical applications of natural phenomenon.

Not Patentable:

1) Naturally occurring materials or organisms.

2) An invention encompassing a human being at its broadest reasonable interpretation.

3) Laws of mathematics, physics and processes which depend on these laws.  A claim which is directed to the practical application of these laws can be patentable however.

4) Computer related descriptive material is not patentable they are copyrightable.