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Patentability

What are the criteria for patentability in your jurisdiction?

The Unified Patent Court will have jurisdiction to hear claims relating to both European patents and upcoming European patents with unitary effect established by the EU Unitary Patent Regulation (1257/2012).

The European Patent Office (EPO) will grant unitary patents in accordance with the European Patent Convention (EPC). The pre-grant procedure and requirements to obtain a unitary patent will be the same as for European patents, but the patent owner will be able to request unitary effect within one month from publication of the granted European patent in the European Patent Bulletin.

The patentability criteria for a unitary patent are set out in the EPC and are the same as for European patents. To be patentable, an invention must be new, involve an inventive step and be susceptible of industrial application and must not be excluded from patentability.

What are the limits on patentability?

Under the EPC, the following are excluded from patentability:

  • discoveries, scientific theories and mathematical methods as such;
  • aesthetic creations as such;
  • schemes, rules and methods for performing mental acts, playing games or doing business;
  • computer programs as such;
  • presentations of information as such;
  • inventions of which the commercial exploitation would be contrary to public policy or morality;
  • plant and animal varieties and any essentially biological processes for their production; and
  • methods for treating humans or animals by surgery or therapy and diagnostic methods practised on human or animals.

Are there restrictions on any other kinds of invention?

Inventions of which the commercial exploitation would be contrary to public policy or morality are excluded from patentability. In addition to the use of human embryos for industrial or commercial purposes, this includes processes for:

  • cloning humans;
  • modifying the germ line genetic identity of humans; and
  • modifying the genetic identity of animals – where it is likely to cause them suffering without any substantial medical benefit to humans or animals – and animals resulting from such processes.

Plant or animal varieties are said to be excluded from patentability under the EPC, although patents may be granted if the technical feasibility of the invention is not confined to a particular plant or animal variety. Recent EPO guidance has indicated that such products will not be patentable when produced by essentially biological processes. 

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