Exclusions from Patentability: How Far Has the European Patent Office Eroded Boundaries
Sigrid Sterckx, Julian Cockbain
Language: English
Pages: 374
ISBN: 1107006945
Format: PDF / Kindle (mobi) / ePub
Exclusions from Patentability reviews the history of the adoption of exclusions from patentability under the European Patent Convention since its first conception in 1949 through to its most recent revision. The analysis shows how other intellectual property treaties, such as UPOV, the Strasbourg Patent Convention, PCT, the EU Biotech Directive and TRIPS have affected the framing of the exclusions. Particular attention is given to those exclusions considered the most contentious (computer programmes, discoveries, medical treatments, life forms and agriculture) and those decisions which have been most influential in shaping the approaches by which the exclusions have been interpreted. The 'morality' exclusion and the interpretation of the exclusions are discussed critically and suggestions for coherent interpretation are made.
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morality in only one state (Document IV/2767/61-E: 6). The following day, the PWP agreed that inventions that were contrary to morality should be unpatentable. Nonetheless: The Working Party recognised that there was no European definition of morality. The German delegation and the Chairman preferred to refer to national concepts. But the majority felt that if such a stance were taken, it would give too great a prominence to national concepts in the European Convention. The Working Party
final SYN 159: 75). This of course is contrary to the ‘essentially biological processes’ exclusion of Art. 53(b) EPC. Art. 6 of the first draft of the EBD provided that: ‘A process consisting of a succession of steps shall be regarded a microbiological process, if the essence of the invention is incorporated in one or more microbiological steps of the process’ (Document COM(88) 496 final SYN 159: 75). This clearly would have placed a constraint on the interpretation of the word ‘essentially’ in
functionally defined by precisely those steps of information processing which form part of the knowledge of the skilled person and that the application of computer systems in the economic sector has already been a general phenomenon at the priority date (filing date) of the application, it must be concluded that the claimed subject-matter does not involve an inventive step. (T-931/95: 456–7, emphasis added) In March 2002, in T-49/99 Informational modeling/ I N T E R N AT ION A L C OM P U T E R S
field from which, because of its informational character, a skilled person would expect to derive any technically relevant information, does not belong to the state of the art to be considered in the context of Articles 54 and 56, even if it had been made available to the general public before the relevant priority date. (T-172/03: paras. 8–10) T-172/03 Order management/R IC OH is discussed further below in its proper turn. However, we should plant our flag and declare that this assertion, that
gene therapy. (EPO 2011: C.IV.2–3, emphasis added) From this, it is clear that two positions are being advocated – first that the application of a discovery may be patentable, and second that, if it has technical effect, the discovery itself may be patentable. The first seems to be in line with the travaux préparatoires, while the second is an application of the technical character approach developed by TBoA 3.5.01 in connection with computer programs and discussed in Chapter 3. Turning now to
