Patentable subject matter

The different legislations that govern which subject matters can be patented

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Patentable, legislative or patent-eligible subject matter is subject matter which is subject of patent protection. The laws or patent systems of many countries advise that certain subject matter is or is not something for which a patent should be issued.

Together with novelty, inventive step or lack of clarity, utility and industrial applicability, the question of whether a specific subject matter is patentable is one of the principal necessities for patentability

Legislations

The subject-matter which is considered patentable as a matter of policy, and correspondingly the subject-matter which is excluded from patentability as a matter of strategy, depends on the national legislation or international treaty.

Canada

According to the Canadian Intellectual Property Office (CIPO) patents may only be issued for physical embodiments of an idea, or a process that results in something that is physical or can be sold. This excludes theorems, computer programs per se, or business methods.

European Patent Convention

The European Patent Convention does not provide any positive regulation on what should be considered an invention for the purposes of patent law. However, it provides in Article 52(2) EPC a non-extensive list of what are not to be regarded as inventions, and therefore not patentable subject matter:

The following in particular shall not be regarded as inventions

(a) Discoveries, scientific theories and mathematical methods;

(b) Aesthetic creations;

(c) Schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

(d) Presentations of information.

Article 52(3) EPC then qualifies Art. 52(2) EPC by asserting:

The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.

(Some further items are excluded under Article 52(4) EPC, as formally being not industrially applicable).

The algorithm exception and the patent-eligibility trilogy

The exemption of patenting algorithms arose out of three Supreme Court cases commonly referred to as the "Supreme Court Trilogy" or "patent-eligibility trilogy". This is a designation for three Supreme Court cases determined within a decade on whether, and in what circumstances, a claimed invention was within the scope of the US patent system (that is, was eligible to be considered for a patent grant). The three cases of the trilogy can be coordinated on the basis of when a claimed implementation of an idea or principle is old or departs from the prior art in only a facially insignificant way, the claim is patent-ineligible (as Nielson and Morse said, and Flook reaffirmed, it must be treated as if in the prior art).

The invention in this case was a technique of programming a general-purpose digital computer using an algorithm to convert binary-coded decimal numbers into pure binary numbers.

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