Conditions of patentability

To be protected by a patent, an invention must be novel, inventive (show inventive activity), have industrial applicability and be lawful.

The notion of invention

Above all, it must be a true invention. No legal definition of invention exists. However, we generally define an invention by the fact that it must have a technical character, which means that it provides a technical solution to a technical problem or that it provides a technical contribution to prior art.

It follows that the following are not considered inventions in and of themselves:

  • Discoveries, scientific theories or mathematical methods. However, these may be a basis for patentable inventions. For example, Einstein's theory of relativity is not patentable in and of itself, but GPS techniques which apply the theory are;
  • Aesthetic creations or presentations of information. Instead, these creations could be protected by copyright or design rights;
  • Plans, approaches and methods used in intellectual activities, gaming or in the field of economic activities (called “business methods”). For example, accounting methods or architectural blueprints are not patentable;
  • Computer programs. It is potentially patentable only if the computer program has a particular technical effect or if, in combination with equipment, it meets other patentability conditions. An invention implemented by a computer program which brings a technical solution to a technical problem may be protected by a patent.
    For example, software which uses less computer memory space could be considered an invention. However, computer programs are protectable by copyright.

Discoveries, theories, software, aesthetic creations, presentations of information, business methods, etc. are not excluded from patentability unless the patent request is based on these elements “as such.”  This means that the incorporation of these elements in a product, process or a result by which a technical solution is found for a technical problem may lead to a patent. This would be the case for medical scanners which are operated by specific software.

Plants, animal species, biological processes for obtaining plants or animals as well as the human body at different stages of its creation or development or the simple discovery of an element of the human body (for example, a genetic sequence) are not patentable. A patent request may be possible if the application of the invention is not limited to a plant variety or specific animal. Similarly, you could patent a microbiological invention or a part of the human body (such as a genetic sequence) when it was isolated or produced by a technical process outside of the human body. In all cases, the conditions for patentability must be met.

Click here to learn more about biotechnology inventions and patents.

The methods for treating the human or animal body through surgical or therapeutic methods and diagnostic methods are explicitly excluded from the application scope of what can be patented.

Novelty

An invention must be novel. An invention is considered novel if it is not included in prior art. Prior art consists of everything which was made accessible to the public before the date on which the patent request was filed (written or oral request), which is currently used, or made accessible by any other means. For example, this could consist of marketing the invention, press conferences, press articles, publications or public exhibitions.

The content of patent requests, even unpublished ones, is part of prior art in the country in which the patent is requested. In this case, an invention which is not yet known by the public may be part of prior art, thus invalidating a formerly filed patent request.

When deciding whether an invention meets the condition of novelty, it is important to remember that those who filed a patent request abroad have a priority right to file a patent request in Belgium within 12 months. This right is recognised in all countries (more than 170) which have signed the Paris Convention.

It is therefore essential to keep one’s invention a secret before filing a patent request! You must pay attention to any access points within the company and the places where the invention is being developed as well as being careful to include confidentiality clauses in contracts with industrial or commercial partners. If an invention is made public through ignorance of these confidentiality clauses or following a burglary, the patent right holder still has 6 months to file a patent request.

Please note! A clear and complete description of the invention is an essential condition for obtaining a patent, but this description (which includes disclosure of the invention) must be given only after the patent request is filed.

Inventive character

An invention has an inventive character if it is not obviously linked to prior art for a professional in the field, i.e. it is not obvious for a specialist. Decisions on this inventive character are made on a case by case basis, taking into account all circumstances. A genius inventor or complex inventions are not required. A simple solution to a problem which has remained unsolved for years may be inventive.

Industrial application

An invention must have industrial application, which means that it must be able to be manufactured or used in any kind of industry, commerce or in agriculture.

An invention, as technical solution to a technical problem, must meet this industrial application requirement. However, this condition is not met by discoveries or scientific concepts, which are never inventions.

Legality of the invention

Inventions whose commercial use would violate public order or morality are not patentable. This also covers inventions whose application would cause significant damage to the environment or risk the life or health of human beings, plants or animals. The fact that the application of the invention goes against a legal or regulatory provision does not always exclude patentability, or at least not any more than the fact that it may be used for illegal means.

For this reason, an invention which may only be applied for chemical warfare or an invention regarding human cloning is not patentable.

In particular, legislators have decided to exclude a series of inventions in the field of biotechnology:

  • Human cloning processes, i.e. any process, including embryo-splitting techniques, which are meant to create a human being with the same nuclear genetic information as another deceased or living human being;
  • Processes for modifying the germ cell genetic identity of human beings;
  • The use of human embryos for industrial or commercial means;
  • Processes for modifying the genetic identity of animals which cause suffering with no substantial medical utility for humans or animals, as well as animals created by such processes.

The fact that these particular biotechnology inventions are excluded from patentability does not mean that all biotechnology inventions are excluded as well!

Last update
22 February 2018