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The Requirements For A Patentable Invention

Written by Emma Wigmore, Emma is a paralegal at Lawdit Solicitors on 21 December 2012

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What are the requirements for a patentable invention?

The Patents Act 1977 states that patents must satisfy four conditions:

  1. It must be new.
  2. It must be an inventive step.
  3. It must be capable of industrial application.
  4. It must not fall within any of the s1(2) exclusions.

New

Judging whether a patent is new is a factual investigation done by the Patent Office, with reference to the current state of the art. They will look at information such as other granted patents, published descriptions and existing products that fall within the same area. Essentially, if there has been a disclosure of the product before the filing date, which would enable another to produce the product or work the process, the new requirement will not be satisfied.

Inventive Step

Even if the product is new, it must also take an inventive step beyond existing technology. This is established by asking whether a skilled, unimaginative person would see the invention as an obvious next step. If prior art is used to invalidate a patent, it must be highly relevant to the patent in question. The commercial success of a patent shows that it is filling a gap in the market, and is hence an indication of it being an inventive step. It is a question of fact in each case, and it is important to remember that even a small step can lead to a valid patent.

Industrial Application

Patents cannot be intangible ideas; they must be practical and possible. Objections on this point can be made if there is insufficient detail in order to create the device, or if the device cannot be built or will not work. S 1(2) ExclusionsThere are numerous exclusions sated in the 1977 Act, and all lead to an invalid patent. Discoveries of natural phenomena are held not to be patentable, as they are clearly not invented by a human. Artistic creations are not patentable, as they are covered by copyright law. Mental acts are not patentable, as we cannot establish when someone is involved in a particular mental process. Also, the presentation of information cannot be patented. Technically, computer programs would be excluded by these sections, however recently they have been allowed if they have a practical application. Furthermore, genetic engineering laws are patentable and highly relevant in modern society. There are clearly numerous ways in which a patent may not be valid, and it is worthwhile considering these fully before making a patent application.

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