Credit to Allen
Introduction
It is the most common question in the world of intellectual property: “Can I patent this?”
The answer, frustratingly and fascinatingly, is almost always: “Yes, but…”
For innovators in biotechnology and pharmaceuticals, this ambiguity is not a roadblock it is an opportunity. The belief that an invention must be a groundbreaking, never-before-seen marvel to warrant protection is a misconception. Often, the difference between a rejected application and a granted patent lies not in the grand idea, but in the microscopic details.
The Myth of the Grand Invention
When we think of patents, we tend to think of the lightbulb or the telephone which is to say singular, revolutionary devices that changed the world. In reality, modern patent law, especially in the sciences, is rarely about inventing an entirely new wheel. It is about making the wheel turn smoother, faster, or more efficiently.
Is everything patentable? In theory, statutory subject matter is quite broad. You can patent a process, a machine, a manufacture, or a composition of matter. However, the threshold isn’t just existence; it is distinctiveness.
For a biotech startup, this means you don’t necessarily need to discover a new molecule. You might patent a new method of synthesizing a known molecule, a new crystalline form of it, or a specific dosage regimen that reduces side effects. The “Yes” in “Yes, but” acknowledges that your work has value. The “But” asks you to define exactly where that value lives.
The Power of the “Minor” Aspect
One of the most critical lessons for inventors is that aspects of an invention that seem minor to a scientist can be monumental to a patent examiner.
In the lab, a slight adjustment to a pH buffer might just be a way to get the experiment to run overnight. To a patent attorney, that adjustment is a “non-obvious technical solution.”
Why Details Matter
Consider a pharmaceutical formulation. The active ingredient might be well-known (prior art). If you file a patent claiming just the active ingredient, you will be rejected. However, if you discovered that adding a specific excipient increases the drug’s bioavailability by 20%, that “minor” addition becomes the linchpin of your patent.
These details are vital for two reasons:
- Overcoming Obviousness: The patent office will often argue that your invention is just a variation of existing technology. By pointing to specific, unexpected results derived from “minor” variables—like temperature, pressure, or particle size—you can argue that the result was not predictable, and therefore, not obvious.
- Defining Scope: Broad patents are great, but they are hard to get and easy to invalidate. Narrower patents based on specific features are often more robust. They might not cover every version of a product, but they cover the best version—the one that works.
Navigating the Success of Your Patent
Getting a patent granted is a negotiation. You start with a claim, the examiner pushes back, and you refine. Understanding which aspects of your invention are patentable dictates your strategy during this process.
If you go in thinking the “big idea” is the only thing that matters, you might give up when the examiner cites a similar existing patent. But if you understand that the patentable value might lie in a specific subset of your invention—say, the delivery mechanism rather than the drug itself—you can pivot your argument.
Practical Insights for Biotech Innovators
- Document Everything: Those “minor” tweaks in the lab notebook are often where the patentable material hides. Never discard negative results or small adjustments; they provide the context needed to prove your final solution works better than the alternatives.
- Don’t Pre-Judge Value: Let your IP counsel help determine what is patentable. Scientists are trained to look for the major scientific breakthrough; attorneys are trained to look for the legal distinction.
- Layer Your Protection: Often, the best strategy is a portfolio approach. You might have one patent on a core composition, another on the method of use, and a third on the manufacturing process. This creates a “picket fence” around your technology that is harder for competitors to breach.
Conclusion
“Is everything patentable?” No. You cannot patent a law of nature or an abstract idea. But is your specific, hard-won innovation patentable? Likely, yes if you know where to look.
Success in patent prosecution rarely comes from broad, sweeping claims. It comes from a deep understanding of the nuances of your own technology. By recognizing the value in the details and understanding that “minor” aspects can yield major protections, you can secure the intellectual property rights that turn a laboratory discovery into a commercial reality.
Meta Title: Is Everything Patentable? Nuances of IP Protection
Meta Description: Discover why “minor” details often determine patent success. Learn how biotech innovators can navigate the “yes, but” of patentability to secure valuable IP.
