A patent is an intellectual property right relating to an invention. It lasts for 20 years and gives the patent holder (usually the inventor) the exclusive right to use exploit their invention during this time. An invention must satisfy four conditions in order to be capable of being granted a patent. It must:
– be new
– involve an inventive step
– be capable of use in an industrial setting
– not fall within an exclusion
This article will examine the fourth requirement; that an invention must not fall within an exclusion.
Sections 1(2) and 1(3) of the Patents Act 1977 set out what an invention may not constitute. Paragraph 2(a) states that the discovery of naturally-occurring phenomena is not patentable and neither are scientific theories or mathematical methods.
Paragraph 2(b) states any creation capable of protection under copyright law will not be capable of protection as a patent. This includes “literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever”.
Paragraph 2(c) excludes mental acts from patent protection, in addition to playing a game or doing business. The paragraph also excludes computer programs, although software is, under certain circumstances, capable of being granted a patent. This is a complex area of the law which has undergone rapid development in recent years. In order to be granted a patent, a computer program must produce an effect that can be separated from the program itself. There is a large body of case law which has developed this principle and the number of patents being granted for computer programs has increased in recent years.
Paragraph 2(d) does not allow for the presentation of information to be patented, as it cannot be regarded as an invention.
Finally, paragraph 3 prevents a patent from being granted in respect of an invention for commercial exploitation which would be contrary to public policy or morality.