Chapter 3 – Patentability
3.2 Invention
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A revised version of this publication entered into force. |
3.2.001The EPC does not define the meaning of "invention", but it does provide a non-exhaustive list of subject-matter and activities that may not be regarded as inventions, i.e. that are expressly excluded from patentability.
Art. 52(2), (3), Art. 53
GL G‑II, 3
In this respect your attention is particularly drawn to the following four fields:
3.2.002The first is programs for computers, which are not regarded as inventions if claimed as such. However, a computer program is not excluded from patentability under Article 52 if, when running on a computer, it causes a further technical effect going beyond the "normal" physical interaction between the program (software) and the computer (hardware). An example of a further technical effect is where the program serves to control a technical process or governs the operation of a technical device. The internal functioning of the computer itself under the influence of the program could also bring about such an effect.
Art. 52(2)(c), Art. 52(3)
GL G‑II, 3.6
GL Index for Computer‑Implemented Inventions
Thus computer programs are not automatically excluded from patentability. More information about the patentability of computer-implemented inventions is available on the EPO website (epo.org).
3.2.003The second field is methods for treatment of the human or animal body by surgery or therapy, and diagnostic methods practised on the human or animal body. These inventions are expressly excluded from patentability. The exclusion from patentability does not apply to products, substances and compositions for use in such methods, e.g. medicaments or surgical instruments. Substances and compositions are in fact singled out for special treatment in the EPC as regards the novelty requirement: even a known substance or composition may be patented for further medical or veterinary uses, provided that such use is novel and inventive.
This exception does not exclude the patentability of other methods of treatment of living human beings and animals; moreover the treatment of body tissues after they have been removed from the human or animal body and diagnostic methods applied to such tissues are patentable as long as the tissues are not returned to the same body.
GL G‑II, 4.2.1
In the case of plant varieties, a separate form of protection is available in most contracting states and under EU law.
A process for the production of plants or animals is essentially biological if it is based on sexual crossing of whole genomes and on the subsequent selection of plants or animals, even if other technical steps relating to the preparation of the plant or animal or its further treatment are present in the claim before or after the crossing and selection steps.
The exclusion does not apply to microbiological processes or the products of such processes. In general, biotechnological inventions are also patentable if they concern biological material that is isolated from its natural environment or produced by means of a technical process, even if it previously occurred in nature.
GL G‑II, 5.5
3.2.005The last field is inventions excluded from patentability because their commercial exploitation would be contrary to "ordre public" or morality. In particular, patents are not granted in respect of processes for cloning human beings, processes for modifying the germ line genetic identity of human beings, uses of human embryos for industrial or commercial purposes, or processes for modifying the genetic identity of animals that are likely to cause them suffering without any substantial medical benefit to man or animal, and also animals resulting from such processes.