What can be patented?
What can be patented?
Not everything can be patented. The development must be:
• novel - in the sense that it must not have been disclosed anywhere in the world
• not obvious - in other words, not an obvious development from what has gone before (“prior art”) in the industry
• be capable of industrial application, that is be useful.
• not ineligible or excluded (see below)
With new technologies, such as biotechnology, early patents are often granted to cover a wide area (often called broad claims) based on the early breakthroughs or “pioneering-inventions”, and interpreting obviousness can be difficult as there is little prior art for benchmarking. Should patent offices grant overly broad patents these can be cut back, in theory, by the courts. As the field develops, patents may have narrower claims based on small improvements. So in the field of biotechnology for example, patents have been granted for novel sequences, new functions of known DNA sequences, and for mutations to DNA sequences involved in disease. As the art moves on, there will be fewer novel genes to be found and patents will instead relate to the application of known sequences such as diagnostic testing kits, therapies, and improvements.
Specific exclusions include discoveries and in Europe, methods of diagnosis and treatment – but not in vitro diagnosis. A discovery in patent law means a phenomenon aalready existing in nature. In Europe, inventions relating to the human body and the simple discovery of one of its elements, including genetic sequences are excluded. However, an element isolated from the human body or otherwise produced by a technological process can be patented, a distinction which is founded in patent law but which can seem illogical to a layperson. For examples of patent claims, see the Patents Office website.
Certain inventions are also excluded from patentability on grounds of being contrary to morality. In Europe, these include processes for cloning humans, modifying human germ lines, using human embryos for industrial or commercial purposes and processes for modifying animal genetic identity which are likely to cause them suffering without substantial medical benefits to man or animal.