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Patentability

What are the criteria for patentability in your jurisdiction?

The criteria for patentability are as follows (Sections 1 and 2 of the Patents Act):

  • The patentable object must be an invention susceptible of industrial application;
  • The patentable object must be new in relation to the state of the art when the patent application is filed; and
  • The patentable object must fundamentally differ from the state of the art.

The requirement of novelty (ie, that the patentable object must be new in relation to the state of the art) is to be understood as a test of objective, global novelty, which means that there are no limitations in terms of time, geography or language when comparing the patentable object with the state of the art.

That the patentable object must differ fundamentally from the state of the art means that the patentable object compared to the state of the art is not obvious to a person skilled in the art.

What are the limits on patentability?

According to Section 1(2) of the Patents Act, the following subject matters and activities are not regarded as inventions and are thus not patentable:

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

Further, according to Sections 1(3-6), 1a(1-2) and 1b(1-3) of the Patents Act, the following categories of subject matters are not considered patentable:

  • methods of treatment for humans or animals by surgery or therapy or diagnostic methods practised therein;
  • particular plant or animal varieties;
  • essentially biological processes for the production of plants or animals;
  • the human body, at the various stages of its formation and development, and the simple discovery of one of its elements, including the sequences or partial sequence of a gene; and
  • inventions whose commercial exploitation would be contrary to public order or morality, including – but not limited to – processes for cloning human beings, processes for modifying the germ line genetic identity of human beings, uses of human embryos for industrial or commercial purposes and processes for modifying the genetic identity of animals that are likely to cause suffering without any substantial medical benefit to man or animal.

To what extent can inventions covering software be patented?

In general, software as such is not patentable (Section 1(2) of the Patents Act). However, it is possible to patent software as part of a patent whose subject matter is a process. Further, software is patentable if it has the potential to bring about, when run on a computer, a further technical effect that goes beyond the normal physical interactions between the program and the computer.

To what extent can inventions covering business methods be patented?

In general, business methods as such are not patentable (Section 1(2) of the Patents Act). That said, business methods can be patented as part of a patent whose subject matter is a process. However, jurisprudence shows that it is difficult to invent business methods that essentially differ from known methods, which is why patents are rarely granted for business methods.

To what extent can inventions relating to stem cells be patented?

Stem cells that have an inherent ability to create human life (so-called ‘totipotent stem cells’) cannot be patented, whereas pluripotent and multipotent stem cells can be patented, as they cannot create human life.

Are there restrictions on any other kinds of invention?

Discoveries, scientific theories, mathematical methods and methods of treatment for humans or animals by surgery or therapy cannot be patented (Sections 1 and 1b of the Patents Act).

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