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Applying for a patent

Patentability

What are the criteria for patentability in your jurisdiction?

The criteria for patentability in Luxembourg include novelty, inventive step and industrial applicability (Articles 6, 8 and 9 of the Law of 20 July 1992.

However, Luxembourg is a non-examining jurisdiction, wherein patent applications proceed to grant irrespective of fulfilling these criteria (Article 41(4) of the Law of 20 July 1992). The onus is placed solely on the applicant to voluntarily amend the case on record to strengthen the presumption of validity of its patent. In this context, a Luxembourg patent application is granted:

  • as a full-term patent (with a duration of 20 years) where its subject matter has been subjected to an official search, either requested at the Luxembourg Patent Office or performed by a foreign office on an equivalent case (eg, the priority case or a later Patent Cooperation Treaty (PCT) case), with the foreign search report filed at the Luxembourg Patent Office by way of a search request; or
  • as a short-term patent (with a duration of six years), where its subject matter has not been subjected to an official search by the time the application is published (on or around 18 months from the filing date or priority date, if one is claimed; Articles 6, 8 and 9).

See Article 35 of the Law of 20 July 1992 (as amended by Article 4 of the Law of 11 August 2001).

However, the above does not apply to European patents subsequently validated in Luxembourg, the patentability criteria for which are set out in the European Patent Convention. Unlike nationally filed Luxembourgish patents, European patents validated in Luxembourg have undergone substantive pre-grant prosecution on the merits before an examining division of the European Patent Office and therefore carry a stronger presumption of inherent validity.

The language of the specification may be English, French, German or Luxembourgish. Where the specification is filed in English, the claims must be translated into French or German and filed within one month of the Luxembourgish filing date.

What are the limits on patentability?

Limits to patentability in Luxembourg are defined as non-patentable inventions and exclusions to patentability (Articles 4 and 5 of the Law of 20 July 1992).

Non-patentable inventions include:

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

However, the above are not patentable subject matter only to the extent that the patent or patent application in question relates to that subject matter as such.

The following are also non-patentable because they lack industrial applicability:

  • methods of treatment of the human or animal body by surgery or therapy; and
  • diagnostic methods practised on the human or animal body.

These exclusions do not apply to an invention consisting of a substance or composition for use in any such methods.

Subject matter excluded from patentability includes:

  • any invention whose commercial exploitation would be contrary to public policy or morality; and
  • plant or animal varieties and biological processes for obtaining them (although this exclusion does not apply to inventions consisting of microbiological processes and their output products).

Are there restrictions on any other kinds of invention?

Beyond the subject-matter restrictions mentioned above, there are statutory restrictions on the disclosure and foreign filing of patent applications deemed to contain information whose publication might be prejudicial to national security (Article 38 of the Law of 20 July 1992 ; Articles 4 to 7 of the Law of 8 July 1967).

These restrictions relate solely to the public disclosure of such inventions, which would automatically occur through the statutory publication of Luxembourgish patent applications around 18 months from the earliest of the application’s filing or priority date (Article 33 of the Law of 20 July 1992).

Specific provisions exist in the Luxembourgish patent legislation regarding: