What happens if a party's new technology arises from a known technology, and differs only in the selection of a specific sub-range of values (eg, a specific percentage of compounds or a specific temperature)? What are the advantages of patenting such a development?

Patents may be granted for any invention, provided that it is new, involves an inventive step and is susceptible of industrial application. This also applies to inventions based on selection of a specific sub-range of values, such as:

  • temperature;
  • pressure;
  • volume; or
  • weight percentages of compounds.

These ranges may be relevant in a variety of technical fields – in particular, chemical sciences.

While assessing the industrial applicability of a technology may be straightforward, extra care should be taken when considering the novelty of such inventions and whether they involve an inventive step.

Indeed, specific requirements in terms of patenting selection inventions based on sub-ranges need to be fulfilled, and patent laws have recently evolved in this regard. It is generally not sufficient to select an unknown sub-range of values, unless an unexpected technical effect or other non-obvious technical consequence may be argued in support of the inventive step requirement.

What happens if a party has already patented a development and discloses a broad range, but another party then finds that a narrower range offers an additional, improved and/or unexpected effect? This is a perfect opportunity for the other party to promote its competences on the market through patenting. Even if it encounters issues with broader ranges protected by third-party patents, it may be a good strategy to consider patenting improvements (for further details please see "Improvements are patentable").

A party's invention may not only be patentable, which is undoubtedly an asset, but may also be used as powerful leverage to license a party's technology to third parties and competitors.

For further information on this topic please contact Ingrid Luyten or Antoine Herbaut at GEVERS by telephone (+32 2 715 3711) or email ([email protected] or [email protected]). The GEVERS website can be accessed at www.gevers.eu.