Patentability What are the criteria for patentability in your jurisdiction?

China Ropes & Gray LLP

An invention or utility model must meet the following requirements to be patentable (Article 22 of the Patent Law):

  • Novelty – the invention or utility model is not existing technology or disclosed in another patent application filed in China before the date of filing, but published after the date of filing.
  • Inventiveness – the invention has prominent and substantive features and represents notable progress, or the utility model possesses substantive features and represents progress.
  • Usefulness – the invention or utility model has practical applicability.

A design must meet the following requirements to be patented:

  • Novelty – the design is not attributable to any existing design.
  • Distinctive – the design is distinctively different from existing designs or a combination of existing designs.
  • No conflict with other rights – the design cannot conflict with the existing legal rights of other parties (eg, trademark rights, copyrights, enterprise name rights, portrait rights and well-known trade dress rights).

In addition, an invention, utility model or design that is the subject of a patent application must meet the following definitions, respectively (Article 2 of the Patent Law):

  • Invention – a new technical solution relating to a product, process or an improvement thereof;
  • Utility model – a new technical solution relating to the shape, structure or a combination of shape and structure of a product which is fit for practical use; and
  • Design – a new design of a product’s shape, pattern, a combination of shape and pattern or a combination of colour and shape or pattern which creates an aesthetic feeling and is fit for industrial application.

Denmark DELACOUR

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

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

Ecuador Paz Horowitz

In Ecuador a patent will be granted to all inventions, whether products or processes, in all fields of technology, if the invention:

  • is new;
  • involves an inventive level; and
  • is susceptible to industrial application.

An invention is new when:

  • it is not in the prior art (technical status);
  • it has inventive level that is not obvious, or obviously derived from prior art, to a person skilled in the relevant technical field; and
  • it is considered to have industrial application where its subject matter may be produced or used in any productive activity, including services.

Finland Backström & Co

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.

France Casalonga & Associés

To be patentable, inventions must:

  • be novel
  • imply an inventive step
  • be susceptible of industrial application.

A patent must describe the invention in a manner that is sufficiently clear and complete for it to be performed by a person skilled in the art. The patent’s subject matter must not extend beyond the content of the application as filed. 

Greece Dr. Helen G. Papaconstantinou and Partners Law Firm

In order for an invention to be patentable in Greece, it must be new, involve an inventive step and be susceptible of industrial application. A patentable invention may concern a product, process or industrial application. In order for an invention to be considered as involving an inventive step, it must not be obvious to a person skilled in the art. In order for it to be considered susceptible to industrial application, the subject matter must be possible to produce or use in any industrial field.

India Chadha & Chadha Intellectual Property Law Firm

As per the Patents Act 1970, the basic criteria for patentability of an invention are as follows:

  • Novelty – the invention should be new and not disclosed to the public anywhere in the world.
  • Non-obvious – the invention should not be obvious to a person skilled in the art in the relevant area of technology and should involve an inventive feature over previous inventions made in the same field.
  • Industrial application – the new product or process should be capable of being made or used in an industry and it should have economic significance.

Israel S Horowitz & Co

The Patent Office grants patents. According to Section 3 of the Patents Law 1967, to qualify for a patent, an invention must:

  • be a product or process in any technological field which is new, non-obvious and susceptible to industrial use; and
  • satisfy the utility requirement.

Under the Patent Office’s Patent Examination Guidelines, in order for an invention (be it a product or process) to fall within a technological field and thus be patentable, it must have real-world effect – in particular, a technical effect on a physical entity in the real world.

Italy Studio Legale Jacobacci & Associati

An invention is patentable if it is novel, involves an inventive step and has an industrial application. An invention is novel if it has not been disclosed before the date of filing or the date of priority of the application. An invention involves an inventive step if, at the time of filing or at the time of priority, it is not obvious to a person skilled in the art due to an existing art or general knowledge. An invention is capable of industrial application if it has a utility that can be regularly reproduced. Finally, a patent must disclose the invention in sufficient detail to enable a person skilled in the art to practise the patent without making any inventive effort.

Japan SUGIMURA International Patent & Trademark Attorneys

The basic criteria for patentability are:

  • subject matter;
  • novelty;
  • inventive step; and
  • industrial applicability.

Subject matter The Patent Act defines an ‘invention’ as "the highly advanced creation of technical ideas by which a law of nature is utilized".

Novelty In line with other regimes, Japanese patent law does not grant exclusionary rights to existing technologies. Article 29(1) of the Patent Act stipulates that inventors may not obtain patents for:

  • inventions that are known to the public (Item i);
  • inventions that are publicly used (Item ii); or
  • inventions that are described in a distributed publication or made publicly available online in Japan or a foreign country before the filing of the patent application (Item iii).

Inventive step If, at the time the application is filed, a person ordinarily skilled in the art could have easily made the invention based on the technology listed in Article 29(1) of the Patent Act (ie, an invention involving the prior art or that is publicly known), the invention cannot be patented (Article 29(2) of the Patent Act).

To reach a decision regarding inventive step, an accurate assessment of the state of the art in the field to which the invention belongs must be made. Further, the points where the invention varies from the prior art must be clearly outlined. While making allowances for the invention’s purpose and effect, a decision will be made regarding whether a person skilled in the art could have easily made the invention by altering the prior art.

Industrial applicability ‘Industry’ is a broad term that includes:

  • manufacture;
  • agriculture;
  • fishing and forestry;
  • mining;
  • commerce; and
  • services.

Medical practice is excluded from the term ‘industry’ and inventions regarding medical treatment are not patentable because they are not industrially applicable. This exclusion stems from the ethical consideration that diagnoses and treatments for humans must not be limited in any way by patents. This legal construction has been adopted due to the lack of statutory provisions expressly denying the validity of patents relating to medical treatment.

However, patents can be obtained for certain aspects of medical treatment, including pharmaceuticals, medical devices and the methods for their manufacture. Article 69(3) of the Patent Act imposes certain limitations on the effect of pharmaceutical patents.

Malaysia Advanz Fidelis Sdn Bhd

There are two forms of protection available under the Patents Act:

  • Patents – an invention is patentable if it is new, involves an inventive step and is industrially applicable.
  • Utility innovation – an innovation is eligible for a utility innovation certificate if it is new and industrially applicable.

Netherlands Hogan Lovells

A patent can be obtained for inventions that are new, involve an inventive step and are susceptible of industrial application. In addition, a number of formal requirements must be met (eg, no subject matter can be added or extended after grant). 

Pakistan PakPat World Intellectual Property Protection Services

The statutory criteria for patentability are:

  • patentable subject matter;
  • novelty;
  • inventive step (or non-obviousness); and
  • industrial applicability.

Romania Nestor Nestor Diculescu Kingston Petersen

A national patent may be granted in respect of an invention that relates to either a new product or a novel process. Under the Patent Law, there are four basic criteria for patentability – the invention must:

  • belong to a field of technology;
  • be new;
  • involve an inventive step; and
  • be susceptible of industrial application.

Turkey DeriƟ Patents and Trademarks Agency

Novelty, an inventive step and industrial applicability.

United Kingdom Powell Gilbert LLP

To be patentable, an invention must be new, involve an inventive step and be capable of industrial application. Use the Lexology Navigator tool to compare other answers.

For more information on how to contribute in your jurisdiction, please contact Sophie Kernohan (skernohan@globebmg.com)