A patent is the exclusive right to utilize an invention over a limited period of time.

The owner of this intellectual property right can prevent others from making, using, selling, or distributing the patented invention without permission. In exchange, the owner of this right discloses his invention to the public. Thus, a patent is a prohibitive right. However, by granting a license the patent holder can explicitly allow others to use the invention.

In order to be patentable, an invention has to fulfill three formal criteria (see also The European Patent Convention (EPC), Art. 52ff).

An invention is considered a novelty, if it does not form part of the state of the art at the time of the application filing, i.e. the invention has not yet been made available to the public by means of a written or oral description, by use, or in any other way.
This self-evident fact is present, if the invention is “not obvious to a person skilled in the art“ (Art. 56). Thus, it has to differ sufficiently from the state of the art. By this criterion, it is intended to prevent routine duties from being compromised by an individual’s property right.
This is the case, if the invention “can be made or used in any kind of industry, including agriculture” (Art. 57). This criterion assures that the invention is operational. Therefore, the inventor has to proof that his invention is realizable and exploitable.

 

In general, all types of technologies and processes can receive a patent grant. However, patent law does not explicitly define what it covers. It is only stated what cannot be considered an invention (Art. 52):

  1. discoveries, scientific theories and mathematical methods;
  2. aesthetic creations;
  3. schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;
  4. presentations of information.

Furthermore, there can be inventions which are considered as such, but cannot receive a patent grant (Art. 53):

  1. inventions whose commercial exploitation would be contrary to “ordre public” or morality; such exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation in some or all of the Contracting States;
  2. plant or animal varieties or essentially biological processes for the production of plants or animals; this provision shall not apply to microbiological processes or the products thereof;
  3. methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practiced on the human or animal body; this provision shall not apply to products, in particular substances or compositions, for use in any of these methods.

Patent offices do not necessarily have to arrive at the same conclusion regarding whether or not an invention is in one of the categories mentioned above. Specifically in the case of software patents, the scope of interpretation is often much more strict among European patent systems compared to the US system.