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1. Introduction .......................................................................................................1 2. Patentability criteria in USA ..............................................................................1 3. Patentability Criteria in Europe..........................................................................2 4. Patentability criteria in WIPO ............................................................................3 5. Patentability Criteria in India .............................................................................3 6. Criteria in Japan................................................................................................4 7. Patentability criteria as per TRIP.......................................................................4 8. Other debatable criteria ....................................................................................5 9. Conclusion ........................................................................................................6
1. Introduction
The patent system is designed to encourage inventions that are useful to society by granting inventors absolute right to make profit from their inventions. But patents cannot protect each and every person who conceives an invention. Hence an invention must fulfill certain criteria to be patentable. Patentability refers to the substantive conditions that must be met for a patent to be held valid. As patent laws are different in different countries, the patentability criteria also vary from country to country. The invention must satisfy the requirements under the context of a national or multinational body of law to be granted a patent. Although the patentability criteria differs from country to country depending on the law of the land, there exists some commonality between them. In order to be patentable, an invention must be novel, have utility, and differ from what skilled users might expect. These standard requirements are given different shapes by the legislative and judicial systems of different countries. Lets discuss how the criteria are interpreted in different countries.
Novelty- the invention, in order to be patented, must be new. An invention is new if it has nt been a part of any state of the art. The knowledge that is already known to the public cannot be patented. Utility- is another criteria of USPTO to assess the patentability. The invention should be useful in order to be patented. If something has no use for the society or the world, if something is harmful to the mankind, then that is not patentable. Non-obviousness- is the third criteria to evaluate the patentability of an invention. Until 1850, the courts asked only for novelty and utility. But after 1850, the supreme court did not allow patents to every change in an existing method. The criteria of non-obviousness was added. It was stated that if the invention is obvious to anybody having ordinary intelligence and knowledge on the subject matter then it is not qualified for a patent. The US law is very broad to accept everything under the patentability criteria. It is said that anything under the sun made by man would be eligible for patent, as long as it leads to something concrete, useful and tangible.
An invention is excluded if it has no technical character. The technical considerations may lie in the underlying problem solved or in the technical effects achieved. A method claim that does not mention any implementing technology will be rejected. A discovery, scientific theory or mathematical method is not patentable. An invention which is offensive, immoral or anti-social is not patentable.
A method of agriculture or horticulture. Any process for the medicinal, surgical, curative, prophylactic, diagnostic, therapeutic or other treatment of human beings. A mathematical or business method or a computer program or algorithm.
6. Criteria in Japan
Art. 2 of the Japanese Patent Act says, Invention in this Law means the highly advanced creation of technical ideas by which a law of nature is utilized. Article 29 talks about patentability as follows. Section (i) Any person who has made an invention which is industrially applicable may obtain a patent therefore, except in the case of the following inventions: (i)inventions which were publicly known in Japan or elsewhere prior to the filing of the patent application; (ii) inventions which were publicly worked in Japan or elsewhere prior to the filing of the patent application; (iii) inventions which were described in a distributed publication or made available to the public through electric telecommunication lines in Japan or elsewhere prior to the filing of the patent application. Section (2) Where an invention could easily have been made, prior to the filing of the patent application, by a person with ordinary skill in the art to which the invention pertains, on the basis of an invention or inventions referred to in any of the paragraphs of Subsection (1), a patent shall not be granted for such an invention notwithstanding Subsection (1).
humans, modifying genetic identity of animals, using human embryos for industrial or commercial purposes etc. According to TRIPS agreement, the countries are free to determine the appropriate method for implementing the Agreement within their own legal system and practice.
Pharmaceutical patents- some argues that patenting medicines is immoral and should be prohibited. Pharmaceutical product patents will result in higher price for patented medicines.
9. Conclusion
The concept of patentability is very vague in the paraphernalia of legal concepts. The patent application may be rejected for several unforeseen reasons. Even if a patent is granted, it does not necessarily mean that the claimed invention is patentable. Errors in the granting procedure may occur and prior art may be brought to light even after the patent is granted. Although the exact phrases of law differs from country to country, they all aim at certain common criteria, such as, (i) it should be of patentable subject matter, (ii) it must show an element of novelty, (iii) It must be of practical use, (iv) It should be non-obvious, means the invention could not be derived by a person with average knowledge in that field. The basic conditions of patentability, which an application must meet before it is granted, are novelty, inventive step and useful. Besides the invention must not be excluded from the patentability by the law. Unlike in Europe, under U.S. patent law no requirement for technical character exists. U.S. law merely requires that the invention produce a concrete, useful and tangible result. Patentability assessment is extremely important before filing a patent application. By doing a patentability assessment the inventors can assess the strength of their patents. Besides, if they find it not patentable they can save substantial processing cost by not filing the patent. Abbreviations USPTO EPO EPC WIPO TRIPS GATT United States Patent and Trademark Office European Patent Office European Patent Convention The World Intellectual Property Organization Trade Related Aspects of Intellectual Property Rights General Agreement on Tariffs and Trade
Reference Patentability and the Human genome: issues, debates and controversies, by Emilie Bouliong, and Sandrine de Montgolfier, Source: Internet The TRIPs agreement, http://www.wto.org/english/docs_e/legal_e/27-trips.pdf USPTO site and other patent sites on the net, http://www.uspto.gov/ Consolidated Patent Rules, Code of Federal Regulations Patents, Trademarks, and Copyrights by USPTO, source: Internet PCT applicants guide, source: Internet Three tests of Patentability, by Umakant Mishra, Feb 06, http://www.trizsite.com