Industrial applicability
In certain jurisdictions' patent law, industrial applicability or industrial application is a patentability requirement according to which a patent can only be granted for an invention which is susceptible of industrial application, i.e. for an invention which can be made or used in some kind of industry. In this context, the concept of "industry" is far-reaching: it includes agriculture, for instance. An example of invention which would not be susceptible of industrial application is "a method of contraception [...] to be applied in the private and personal sphere of a human being".[1]
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In United States patent law, the utility requirement is a more or less corresponding, but different, requirement.
Jurisdictions
European Patent Convention
Under the European Patent Convention (EPC), the requirement that an invention must be susceptible of industrial application to be patentable means that the invention "can be made or used in any kind of industry, including agriculture".[2] In decision T 870/04 it was held that the mere fact that a substance can be made in some way does not necessarily mean that the requirements of Article 57 EPC are fulfilled, unless there is also some "profitable use" for which the substance can be employed.[3]
When an alleged invention does not comply with the generally accepted laws of physics, the industrial application is also lacking. In that case, the industrial application requirement is related to the requirement of sufficiency of disclosure, i.e. the requirement that a "patent application must disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art".[4][5]
Article 53(c) EPC excludes "methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practised on the human or animal body" from patentability, because these methods are regarded as not susceptible of industrial application.[6] The purpose of this exclusion is "to deny patent protection to methods which serve medical purposes, so that no one could be hampered in the practice of medicine by patent legislation."[7]
Japan
See also
References and notes
- Decision T 74/93 of the Boards of Appeal of the European Patent Office
- Article 57 EPC
- Decision T 870/04
- "Industrial application is also lacking if the product or process is contrary to the laws of physics (T 541/96), such as for example a perpetual motion machine (...)." in Legal Research Service for the Boards of Appeal, European Patent Office, Case Law of the Boards of Appeal of the EPO (9th edition, July 2019), i.e.1.1 "Invention and industrial application".
- See also, for cases at the United Kingdom Patent Office (UK-IPO), UK-IPO gets tougher on perpetual motion, IPKat, 12 June 2008. Consulted on June 12, 2008.
- Article 53(c) EPC
- Special edition 6/2007, EPO Board of Appeal Case Law 2006, pages 17-18.
External links
- Article 57 EPC (European Patent Convention)
- Guidelines for Examination in the EPO, section g-iii : "Industrial application"
- Legal Research Service for the Boards of Appeal, European Patent Office, Case Law of the Boards of Appeal of the EPO (9th edition, July 2019), i.e : "The requirement of industrial application under Article 57 EPC"
- Article 33(4) PCT (Patent Cooperation Treaty)
- Article 1 of the Paris Convention for the Protection of Industrial Property, see in particular paragraph (3) for guidances as to how the word "industry" should be interpreted.