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Patentability What are the criteria for patentability in your jurisdiction?

To be patentable, a technical invention must:

  • be novel;
  • involve an inventive step; and
  • be industrially applicable.

To be ‘novel’, the solution defined in the patent claim must not have already been made available to the public through writing, lectures or public use or be otherwise known.

An invention will include an inventive step if it is not obvious to a person skilled in the art and it is not general knowledge.

An invention will be capable of industrial application if it is technological in nature and the technical solution can be regularly reproduced.

What are the limits on patentability? The following are excluded from patentability: 

  • discoveries;
  • mathematical methods and scientific theories;
  • aesthetic creations;
  • schemes, rules and methods for performing mental acts, playing games or doing business;
  • computer programmes;
  • presentations of information.

Surgical or therapeutic treatments or diagnostic methods practised on humans or animals are not regarded as inventions. However, this provision does not preclude the granting of patents for products – including substances and compositions – to be used in any of these methods.

Patents are not granted for plant or animal varieties. However, inventions that involve plants or animals are patentable if the technical feasibility of the invention is not confined to a particular plant or animal variety. Patents are not granted for essentially biological processes for the production of plants or animals. A process for the production of plants or animals is ‘essentially biological’ if it consists entirely of natural phenomena such as crossing or selection. These restrictions do not prejudice the patentability of inventions that involve a microbiological or other technical process or products obtained by means of such a process.

Inventions are patentable even if they involve:

  • a product consisting of or containing biological material; or
  • a process by means of which biological material is produced, processed or used.

Biological material that is isolated from its natural environment or produced by means of a technical process may be the subject of an invention even if it previously occurred in nature.

The human body at its various stages of formation and development and the simple discovery of one of its elements – including the sequence or partial sequence of a gene – do not constitute patentable inventions. An element isolated from the human body or otherwise produced by means of a technical process – including the sequence or partial sequence of a gene – may constitute a patentable invention, even if the structure of the element is identical to that of a natural element.

Are there restrictions on any other kinds of invention? Patents are granted for inventions whose commercial exploitation would be contrary to public order or morality. However, the commercial exploitation of an invention may not be considered contrary to public order or morality just because it is prohibited by law or regulation.

In particular, the following inventions are considered unpatentable:

  • processes for cloning humans;
  • processes for modifying the germline genetic identity of humans;
  • industrial or commercial uses of human embryos; and
  • processes that modify the genetic identity of animals and are likely to cause suffering without any substantial medical benefit to humans or animals, as well as animals resulting from such processes.

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