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Conditions of patentability

As far as intellectual property is concerned, the law distinguishes between ‘creation’ and ‘invention’. Only inventions can be protected by a patent and, to be deemed a patentable invention, it must be new, inventive and susceptible of industrial application. These conditions are objective criteria that do not take into account the hard work of the inventor or the technical progress made. The law confers equal protection upon a person who accidentally invents something new and someone who arrives at their results through arduous and methodical research. Let us take a closer look at these requirements.

What is an invention?

In Europe, the legal concept of invention has not yet been fully defined. The law simply states that some elements are not thought of as inventions and therefore are excluded from patent protection. Roughly, we can say that objects that are not of a technical nature are not considered to be inventions: for example, aesthetic creations, scientific theories, discoveries, mathematical methods, information presentations, and so on. However, software, processes and even cooking recipes are considered to be inventions if they have a technical result.

Similarly, an idea in itself cannot be protected by a patent. It is the concrete implementations of an idea that are (or may be) eligible for patent protection. Thus, a patent right may not be granted if the invention’s description does not enable a person skilled in the relevant (technical) art or field of expertise to understand and recreate it.

The novelty requirement

An invention will be considered to be novel (ie new) only if it was not part of the state of the art (or is not disclosed in the ‘prior art’) that existed before the patent application filing date. Effectively, this means that to be patentable, the invention must not previously have been revealed in the public domain in any country or in any way, either through publication on the internet, public prior use, public spoken communication, a prior patent application, or by any person, the inventor included. In other words, an inventor would destroy the novelty of an invention and therefore the possibility of obtaining a patent if they were to communicate the invention to a third party, for instance in relation to potential industrial exploitation, before the patent application filing date and without having the other party sign a confidentiality agreement. Similarly, an inventor cannot file a patent application for an invention that another party has already created and revealed, even if that inventor was not aware of the other party’s innovation in advance.

The inventive step requirement

To obtain a patent in most jurisdictions, the innovation in question must also involve an ‘inventive step’; that is to say, the invention must not be obvious to a person skilled in the relevant technical art/field of expertise, or follow logically from the existing state of the art. In other words, it must contain some skill or expertise; it can’t be an invention that would be obvious to any other party working in the field.

If you’re not sure if your invention meets the novelty or inventive requirements, contact one of our consultants. We provide research and clearance searches prior to the submission of any patent application, so that we can ensure that it has been drafted taking account of any existing prior art.

Would you like to know more about Novagraaf’s patent-related services?

Please contact us if you would like to receive any more information on the conditions of patentability, if you would like us to help you obtain a patent or if you want to receive more information on Novagraaf’s services in relation to patents in general. You can contact us via the form in the upper right-hand corner of this page.