What is a patent?
A patent is a legal title granting to its holder the right to prevent third parties to produce and/or to apply a well defind invention. The application comprises also the using, the export, the import, to keep the object of invention for sale, the sale itself as well as to place the object of invention into circulation.
This exclusive right exists only for a limited period; as a rule during 20 years, calculated from the filing date of the patent application.
A patent extents only for a geographically limited territory, that is in the territories of those states where a patent application has been filed and where a cooresponding patent has been granted.
An object of invention must involve a "technical teaching". This "technical teaching" is an instruction addressed to a technically skilled person as to how to solve with distinct technical means the particular technical problem.
In order that an object of invention may be patented the following criteria must be fulfilled:
In addition, the object of invention must be disclosed in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art (with the help of his skill); see Art. 83, EPC.
The term "novelty" means "made available for the first time to the public".
An object of invention is then based on an "inventive step" when, having regard to the state of the art, it is not obvious to a person skilled in the art. The term "inventive step" may also be understood as level of invention or as a technical progress or improvement.
Which parts comprises a patent?
A patent comprises the patent claims, the specification, the abstract and occasionally the drawings.
The scope of protection is defined in the set of claims. Thereby it is important to use in the independent claims broad terms that may be further defined in the dependent claims.
There exist two basic kinds of patent claims:
In the specification the state of the art has to be dealt with. Also the objects of the invention must be mentioned here. In the specification the invention has to be described further and must be illustrated by means of a concrete embodiment in the form of an example.
The abstract is a concise summary of the disclosure as contained in the set of claims, in the specification and occasionally in the drawings.
Exceptions of patentability
In most countries it is stipulated that no patents will be granted for:
In addition, no inventions are (Art. 52 (2), EPC):
Exist patents on life?
In Europe is decisive the EU-Directive 98/44/EG of July 6, 1998 concerning the legal protection of biotechnological inventions. This Directive has been incorporated as secondary legislation into the Implementing Regulations to the EPC (Rule 26 (1), EPC).
This Directive affirms the patentability of isolated biological material even if it has occurred previously in nature (Rule 27 (a), EPC).
It confirms also that plants or animals are patentable if the technical feasibility of the invention is not confined to a particular plant or animal variety (Rule 27 (b), EPC).
The human body, at the various stages of its formation and development, and the simple discovery of one of its elements, including the sequence or partial sequence of a gene, cannot constitute patentable inventions (Rule 29 (1), EPC).
A sequence or partial sequence of a gene is patentable when the industrial application of the sequence or the partial sequence of a gene is disclosed in the patent application (Rule 29 (3), EPC).
According to Rule 28, EPC no European patents shall be granted in respect of biotechnological inventions which, in particular, concern the following:
Exist patents for software?
Patents are granted for computer-implemented inventions. Such inventions must also fulfill the usual requirements on patentability - see the statements under "What is a patent?" - and they must not be excluded from patentability; see the statements under "Exceptions of patentability".