To be patentable, it takes a invention.
Chapter 1. Definition
An invention is not necessarily innovative (as one might think).
For patents, an invention is something technical :
- a product,
- a method,
- a device,
- use in a technological field (A52 (1) EPC).
This is very vague ...
To help us, the CBE has sought to define this concept in a hollow.
Chapter 2. Exclusion of the concept of invention
Section 2.1. Principle
- business methods;
- discoveries, scientific theories and mathematical methods;
- aesthetic creations;
- plans, principles and methods:
- in the exercise of intellectual activities,
- in gaming, or
- in the field of economic activities,
- computer programs;
- information presentations.
But only if they are caught as such (and there is all the difficulty, A52 (3) EPC): thus, if one of these elements includes an additional technical element, it may be patentable!
Let's detail each of these exclusions for more details.
Section 2.2. Discoveries, scientific theories and mathematical methods
A discovery is an observation of a preexisting natural phenomenon.
However, the application of #8217; a discovery for the creation of #8217; a new product may be patentable (Guidelines G-II 3.1) for example :
- a particularly impact-resistant compound implementing a scientific discovery;
- a substance found in nature produces a technical effect (eg an antibiotic effect) or a micro-organism that produces that substance;
- a gene of the human body making it possible to manufacture a certain protein / polypeptide (T236 / 96 or "V28 / ICOS” T1191 / 01).
2) Special case of biological material
Moreover, the R27 (a) EPC underlines that & #8217; is patentable & #8220;a biological material isolated from its natural environment or produced using #8217; a technical process, even when #8217; it pre-existed in the natural state” .
3) Special case of gene sequences
This is also true for human gene sequences R29 (2) EPC :
An element isolated from the human body or otherwise produced by a technical process, including the sequence or partial sequence of a gene, may constitute a patentable invention, even if the structure of this element is identical to that of & #8217; a natural element.
2.2.2. Scientific theories
A scientific theory is simply an intellectual activity.
However, new semiconductor devices and their manufacturing processes may be patentable even if the theory of superconductivity is not (#8217;G-II Guidelines 3.2).
2.2.3. Mathematical methods
If a mathematical method (such as a rapid division method or an electrical filtering method) is not patentable, a machine implementing it can be (#8217;G-II Guidelines 3.3).
The decision & #8220;VICOM” , T208 / 84 highlights the difference between a mathematical method (& #8220;abstract concept prescribing how to deal with numbers& #8220;) and a patentable technical process which uses a mathematical method (& #8220;this process is applied to a physical entity (which can be a material object, but also an image stored in the form of an electrical signal) […] and this results in a certain modification of this entity“).
For example, the & #8217; expression & #8220; to control a physical process & #8221; may allow the invention not to be a mathematical method as such (T953 / 84).
Section 2.3. Aesthetic creations
Artistic creations are not patentable (Guidelines G-II 3.4).
In fact, they already have specific protection: they are already protected by copyright, designs and models.
2.3.2. Non-patentable aesthetic effect
In a case T119 / 88, an applicant sought protection for a & #8220; flexible CD case whose color was different from black & #8221; . The applicant justified his invention in the fact that this envelope avoided fingerprints.
However, the Board of Appeal considered that the anti-fingerprint effect was purely aesthetic and therefore was not patentable.
2.3.3. Technical elements for obtaining a patentable aesthetic effect
In order for a claim to be considered an invention despite an aesthetic effect, the aesthetic effect must be obtained by means of a process or of a technical means: #8217;
- a support for the realization of #8217; a work of art (#8217; art)T 686/90) because it is functional;
- a diamond cutting process allowing to obtain particularly beautiful diamonds (Guidelines G-II 3.4);
- a woven fabric of #8217; a special way to make it silky;
Section 2.4. Intellectual or commercial plans, principles and methods
An abstract method (not allowing to obtain an industrial result) is not patentable (G-II Guidelines 3.5).
The typical example is the commercial method of sale.
In the same way if a method is very abstract (e.g. providing a drug based on the genotype of a patient), we can consider that the method is a simple non-patentable principle (T758 / 12).
Today, case law considers that a method (even intellectual or commercial), but involving technical means constitute inventions within the meaning of #8217;A52 (1) EPC (T619 / 02 or T931 / 95): if the method is really intellectual, it will be rejected as an inventive step. However, it is necessary to claim these technical means (T388 / 04 and T619 / 02).
Section 2.5. Computer programs
Exclusion on computer programs (Guidelines G-II 3.6) is actually aimed at the source code of these programs and their attached documentation (the language words of the program n & #8217; are not technical, T110 / 90).
The first jurisprudence of the EPO (VICOM, T208 / 84) is also very clear on the subject: a calculator arranged to operate software for the execution of #8217; a technical process (e.g. improvement of an image) is not a computer program as such.
2.5.2. The theory of & #8220; l & #8217; additional technical effect & #8221;
Similarly, the decision T1173 / 93 (or IBM decision) or T935 / 97 (IBM II decision) emphasizes the fact that a program can be claimed. In these decisions, the Board of Appeal indicates that the normal physical effects (ie the electric current operating the processor) are not sufficient to allow the invention to be given a technical character: it is necessary, at the stage of the analysis of & #8217; exclusion from patentability, see if & #8220;l & #8217; additional technical effect& #8221; goes beyond these normal technical effects (the additional technical effect can be assessed according to the identified prior art).
This additional technical effect may, for example, be:
- the control of a machine tool;
- data processing representing physical entities;
- l & #8217; improvement of the internal functioning of the computer (increase in calculation speed, data compression, reduction of necessary resources, reduction in transfer rate in a communication link, etc.).
2.5.3. The end of & #8220; l & #8217; additional technical effect & #8221;
In the decision T931 / 95 (Pension Benefit decision), the Board of Appeal abandoned the theory of #8217; additional technical effect: a product claim cannot be excluded from patentability simply because #8217; it implements a purely intellectual method by computer.
Indeed, for the appreciation of the technical character, it is necessary to disregard the state of the art (cf. T 1173/97, confirmed in the decision G3 / 08, see Guidelines G-II 3.6): thus, the technical nature of a computer is enough to overcome the pitfall of non-patentability.
Section 2.6. Presentation of information
A presentation of & #8217; information characterized only by the & #8217; information that it contains will not be patentable.
The simple generation and display of information, possibly in a practical and practical manner, relates to the subjective perception of a user: this therefore constitutes a presentation of information (#8217;T231 / 13).
Will be technical (Guidelines G-II 3.7):
- a telegraph or a communication system using character encoding (e.g., pulse code modulation);
- a data format allowing a better storage density in memory (T659 / 04);
- a measuring instrument making it possible to obtain a particular form of graph representing the measured data;
- a disc having a groove of #8217; a particular shape allowing stereophonic recordings;
- a computer data structure (T1194 / 97) defined in terms which, intrinsically, include the technical characteristics of the program using it;
- a slide fitted with a #8217; a sound track around its periphery and an icon having an alternation of light and dark stripes giving a three-dimensional appearance (T1749 / 06);
- a human-machine interface allowing to increase the efficiency of interactions with the user (#8217;Guidelines G-II 3.7.1).