For an invention to be patentable, it must be capable of industrial application (A52 (1) EPC).
The notion of industrial application is to be distinguished from notion of invention defined above (even if these two notions can sometimes be confused or overlap).
Chapter 1. Definition of industrial application
For an invention to have an industrial character, it must be able to be used or fabricated in any industry, including agriculture (A57 EPC).
The term "industry" should be understood as the exercise of any activity of a technical nature (as opposed to the fine arts, Guidelines G-III 1).
For example, an invention with a technical purpose is patentable (even if the invention is a simulation or no tangible / material result is obtained) (T1227 / 05).
Chapter 2. Appraisal of the industrial application
Section 2.1. Presentation of the application
The industrial application of the invention must be stated in the application if it is not obvious (R42 (1) EPC).
Section 2.2. Moment of appreciation
Is the time of deposit the demand that should be placed to evaluate the industrial application.
For example, if one claims a plastic resistant to molten metal whereas this plastic does not exist at the date of the deposit (even if it is invented the day after the deposit), then there is no industrial application to the invention.
Section 2.3. Classic exclusions
The notion of industrial application thus makes it possible to reject:
- an invention that does not work (eg perpetual motion, Guidelines G-III 1);
- an invention based on unknown and unproven physical principles;
- an invention aimed at an advertising idea;
Section 2.4. Intermediate products
A product whose only role is to enable the manufacture of a final product (and which has an industrial application) will be considered as also having an industrial application (T22 / 82).
Section 2.5. Test methods (mechanical, therapeutic, etc.)
Even if a test protocol often occurs before the industrialization phase (mechanical resistance protocol, allergic effects test protocol, etc.), these methods are considered to have an industrial application (Guidelines G-III 2).
Section 2.6. Gene sequence
For example, a simple DNA sequence without indication of a function has no industrial application (EU Directive 98/44 / EC, recital 23).