Jurisdictions of business patent

An insight on what a business patent means and the rights it bestows

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Whether a business technique is considered as patentable subject matter depends on the legal authority. The World Trade Organization’s Agreement on Trade-Related sides of Intellectual Property Rights (TRIPS) does not particularly address business technique patents.

The United States, Australia, Japan and Singapore are considered "safe havens" for business technique patents. The condition in Canada, Korea and Taiwan is not clear. Patent protection for business technique patents in Israel, China, India, Mexico, and most of Europe is difficult.

Australia

There is no general prevention on the patentability of business technique in Australia. Their patentability is judged by applying the tests used to judge the patentability of any type of invention.

In a recent decision, Grant v Commissioner of Patents [2006] FCAFC 120, the Full Court of the Federal Court of Australia held that a business technique will only be patentable if it has a physical side, being a concrete, tangible, physical, or observable effect or phenomenon. Accordingly, 'pure' business techniques, being those that do not have a physical side, are not patentable in Australia.

However, it has been proposed that Grant v Commissioner of Patents was wrongly decided because the court failed to properly apply the existing law as set out in the decision of the High Court of Australia in National Research Development Corporation v Commissioner of Patents (1959) 102 CLR 252 and that the court should not have imposed a physical side requirement.

Canada

Pure business techniques cannot be patented in Canada due to of its pre-constitutional (in 1982) subordination to British Common Law. Article 1(2)(c) of the Patent Law of 1977 “It is hereby declared that the following (among other things) are not inventions for the purposes of this Act, that is to say, anything which consists of …. a scheme, rule or technique for performing a mental act, playing a game or doing business, or a program for a computer.” For example, the Canadian equivalent application of the U.S. patent at issue in the State Street case has been abandoned.

However, a business technique patent may be patented in Canada if the patent is claimed in a way which provides that an apparatus is involved. See Mark B Eisen, Arts and Crafts: The Patentability of Business Techniques in Canada (2001), 17 C.I.P. Rev. 279.

Brazil

"commercial, accounting, financial, educational, advertising, raffling, and inspection schemes, plans, principles or techniques" are not considered to be inventions or Utility Models according to Brazilian Patent Law 9279.

European Patent Convention

"Schemes, rules and techniques for (...) doing business" are not considered as being inventions and are not patentable under the European Patent Convention, "to the extent that a European patent application or European patent relates to such subject-matter or activities as such".

But if a new technique solves a technical, rather than a merely administrative, problem then it may indeed be patentable. (For example, an improved design of letter-franking machine).

 

Article Tags: Business Technique

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