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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.

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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