Not every creation or concept qualifies for intellectual property protection. This post clarifies what cannot be protected under IP rights so you can focus your efforts on assets that truly benefit from patents, trademarks, copyrights or design registrations.
Many businesses waste thousands of dollars attempting to protect unprotectable assets or miss opportunities to safeguard what actually qualifies for IP rights. This comprehensive guide clarifies exactly what is not included in intellectual property rights so you can make informed decisions about your IP strategy.
For a full overview of IP rights, see What are intellectual property rights? and the 7 Types of Intellectual Property Rights
Why Do IP Exclusions Exist?
Intellectual property law aims to balance innovation incentives with public access to knowledge. These exclusions ensure that fundamental building blocks of human knowledge, natural discoveries, and essential communication tools remain available for everyone to use and build upon.
The core principle: IP rights protect specific expressions, applications, and implementations—not abstract concepts, natural phenomena, or basic human knowledge.
What Cannot Be Protected Under IP Rights?
IP rights are meant to guard specific expressions and practical applications, not every idea or feature. Here are the main categories that fall outside IP protection:
Abstract Ideas & Pure concepts
Ideas, theories and algorithms, no matter how original, remain unprotectable until expressed in a concrete, tangible form to qualify for protection. This prevents people from monopolizing fundamental concepts that others need to innovate.
Real-world examples:
- Business models or strategies (like "subscription services" or "two-sided marketplaces")
- Mathematical formulas or scientific theories
- General concepts for apps, websites, or inventions
- Philosophical or economic theories
Facts, Data & Information
Raw information, such as historical events, statistics or scientific observations, cannot be owned. Only the unique selection or presentation of those facts (e.g., a tailored database or authored article) qualifies for copyright.
Facts belong to everyone. Allowing ownership of basic information would stifle education, research, and communication.
Business strategy: Focus on how you organize, present, or analyze data rather than trying to own the raw information itself.
Examples of unprotectable information:
- Weather data and climate statistics
- Historical dates and events
- Sports scores and player statistics
- Stock prices and financial data
- Scientific measurements and observations
Methods, Processes & Abstract Procedures
Abstract methods or workflows, like a general process for organizing a team, are excluded unless they are part of a technical invention eligible for patent protection.
Basic methods of organizing human activity or conducting business are too fundamental for private ownership.
Tip: If your process delivers a novel technical effect, discuss patentability with an expert.
Examples that typically can't be protected:
- General management methodologies
- Educational or training methods
- Basic accounting or bookkeeping procedures
- Simple business workflows
- Abstract software algorithms without technical application
Natural Phenomena & Laws of Nature
Elements of the natural world (such as gravity, genetic sequences in their natural state or mineral compositions) are discoveries, not inventions, and cannot be claimed as IP.
Natural discoveries aren't human inventions. Allowing patents on natural phenomena would restrict scientific research and medical advancement.
Note: You can patent an application of a natural principle (e.g., a new method to extract a natural compound), but not the principle itself.
Examples of excluded natural elements:
- Laws of physics (gravity, thermodynamics, electromagnetism)
- Naturally occurring genetic sequences
- Chemical elements and their properties
- Naturally occurring minerals and compounds
- Mathematical relationships found in nature
Generic Words, Common Phrases & Descriptive Terms
Common language, everyday terms and brief expressions lack the distinctiveness needed for trademark or copyright protection.
Basic language must remain available for everyone to communicate effectively. Allowing ownership of common words would restrict free speech and commerce.
Branding strategy: Create distinctive, memorable brand names that suggest benefits without directly describing your product or service.
Examples that typically can't be trademarked:
- Generic product names ("Smartphone," "Computer," "Coffee")
- Purely descriptive terms ("Fast," "Strong," "Reliable")
- Common phrases ("Good Morning," "Thank You")
- Geographic terms used descriptively ("New York Pizza")
Examples that usually can't be copyrighted:
- Simple slogans or catchphrases
- Short phrases or expressions
- Common sayings or idioms
- Individual words or names
Purely Functional Features
When a product’s shape or element is dictated solely by technical necessity (e.g., the ergonomic curve of a wrench), it falls outside design rights. Such features may be better covered by patents or kept as trade secrets.
Functional elements should be available for all manufacturers to use. Allowing design protection on purely functional features would create unfair monopolies on necessary product characteristics.
Strategy: Identify ornamental details that can be registered separately from functional parts.
Examples of excluded functional features:
- The ergonomic shape of a tool handle (when it's the only effective shape)
- Standard connector shapes and sizes
- Safety features required by regulations
- Basic geometric shapes used for structural purposes
Alternative Protection Strategies for Non-IP Assets
Just because something can't be protected under traditional IP rights doesn't mean it's impossible to defend:
Contractual Protection
- Non-disclosure agreements (NDAs) for confidential information
- Non-compete clauses to prevent key employees from taking knowledge to competitors
- Work-for-hire agreements to ensure you own employee-created IP
Trade Secret Protection
- Maintain confidentiality through physical and digital security measures
- Limit access to sensitive information on a need-to-know basis
- Create clear policies for handling proprietary information
First-Mover Advantage
- Launch quickly to establish market position before competitors
- Build brand recognition and customer loyalty
- Create network effects that make competitive entry difficult
Strategic Business Methods
- License complementary technologies to create barriers
- Build exclusive supplier or distributor relationships
- Invest in customer switching costs
Understanding what cannot be protected under IP rights prevents costly mistakes and helps you focus resources on assets that truly qualify for protection. Remember:
- Ideas need implementation to become protectable
- Facts need creative expression to gain copyright protection
- Functions need ornamental elements to qualify for design rights
- Common words need distinctiveness to become trademarks
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