A patent for an invention bestows the exclusive right to manufacture, sell, import and use either a product or a process, or the product of such a process.  A patent may be infringed whether or not there is any ‘copying' of the idea or principle underlying the invention. In addition, the term of a patent - 20 years in Europe, with the possibility of extension in the case of medicinal and plant protection products for up to a further 5 years - provides very considerable economic protection.

The rules for the grant of patents were harmonised throughout various European countries by the European Patent Convention of 1973.  To be patentable, an invention must be new (novelty being assessed on a world wide basis) and involve an inventive step (that is to say, it must not be obvious), it must be capable of industrial application, and it must not fall within the list of excluded items.  These include:

• aesthetic creations (generally covered by copyright);
  
• methods for performing mental acts, playing games or doing business, or computer programs as such;
  
• the presentation of information;
  
• animal or plant varieties (other than micro-biological processes or products).

In the US, patents are not subject to the same restrictions.  However, there have been significant recent developments in Europe in relation to the excluded categories, particularly for software patents and biotechnological inventions.  It has for some time been possible to obtain a software patent in Europe, provided the software produces a "technical effect" over and above simply running the program.  Recent decisions of the European Patent Office Board of Appeals mean that, provided the other qualifications for patent protection are satisfied (novelty, inventive step and industrial application), it is possible to obtain patent protection not only for the technical effect produced by a computer system when programmed by the software, but also for the software on a carrier, or on its own. 

The EU Directive 98/44/EC on the legal protection of biotechnological inventions has clarified the scope of protection for inventions based on biological material.  Amongst other things, it prohibits patents for cloning human beings, but allows patenting of gene sequences.  However, it remains the case that it is not possible to obtain a patent for an invention that consists merely of a method of doing business.

Because of the need to comply with technical and procedural rules and the desirability of international protection, patenting can be an expensive process.


© Davenport Lyons 2003.  All rights reserved

This document reflects the law and practice as at May 2003.  It is general in nature, and does not  purport in any way to be comprehensive  or a substitute for specialist legal advice in individual circumstances.