For an invention to be patentable, it must be susceptible of industrial application (A52(1) EPC).
The concept of industrial application is distinct from the concept of invention as previously defined (even though these two concepts may sometimes overlap or coincide).
Definition of Industrial Applicability
For an invention to have an industrial character, it must be capable of being used or manufactured in any kind of industry, including agriculture (A57 EPC).
The term « industry » must be understood as the exercise of any activity of a technical character (as opposed to fine arts, Guidelines G-III 1).
For example, an invention having a technical purpose is patentable (even if the invention is a simulation or no tangible/material result is obtained) (T1227/05).
Assessment of Industrial Applicability
Disclosure of the Application
The industrial application of the invention must be disclosed in the application if it is not obvious (R42(1) EPC).
Timing of Assessment
The assessment of industrial application must be made at the filing date of the application.
For example, if a claim is directed to a plastic resistant to molten metal, but such plastic does not exist at the filing date (even if it is invented the day after filing), then the invention lacks industrial application.
Common Exclusions
The concept of industrial application thus allows the rejection of:
- an invention that does not work (e.g., perpetual motion, Guidelines G-III 1); an invention based on unknown and unproven physical principles; an invention aimed at an advertising idea; etc.
Intermediate Products
A product whose sole role is to enable the manufacture of a final product (and which has an industrial application) will also be considered as having industrial application (T22/82).
Testing Methods (Mechanical, Therapeutic, etc.)
Even if a testing protocol often precedes the industrialization phase (e.g., mechanical resistance protocol, allergic effect testing protocol), such methods are considered to have industrial application (Guidelines G-III 2).
Gene Sequence
For this type of invention, it is important to disclose the specific and precise industrial application intended (R29(3) EPC, T898/05, and Guidelines G-III 4).
For example, a mere DNA sequence without indication of a function lacks industrial application (EU Directive 98/44/EC, recital 23).