Patents

Question 1

Industrial application

Answer 1

Defined in article 57 EPC. An inventionis susceptible of industrial application if it can be “made or used in any kind of industry, including agriculture”

Question 2

Plant and animal varieties

Answer 2

Plant and animal varieties as well as essentially biologigal processes for the production of plants or animalts are NOT patentable, jf. s. 170. PLants or animals are not to be granted patent protection by means of an essentially biological process.

Question 3

Person skilled in the art

Answer 3

a person skilled in the art should be presumed to be a skilled practitioner in the relevant field of technology, who is possessed of average knowledge and ability and is aware of what was common general knowledge in the art at the relevant date.

Question 4

Plant and animal varieties

Answer 4

Plant and animal varieties as well as essentially biologigal processes for the production of plants or animalts are NOT patentable, jf. s. 170. Plants or animals are not to be granted patent protection by means of an essentially biological process. Due to the fact that the EPC prevails over the Implementing Regulatins (ar. 164 (2) EPC) the amended rules are of no relevance.

Question 5

Person skilled in the art

Answer 5

a person skilled in the art should be presumed to be a skilled practitioner in the relevant field of technology, who is possessed of average knowledge and ability and is aware of what was common general knowledge in the art at the relevant date.

Question 6

Materiale that is isolated from the human body

Answer 6

can be patented even if they occur in nature, subject to the rewuirtement that the funtkion making them capable of industrial application is disclosed in the application documents. (medicinal production should be encourages by means of the patent system)

Question 7

Ordre public

Answer 7

morale / ethical views

Question 8

Unpatentable due to ordre public (art. 6(2)

Answer 8

a) processes for cloning human begings
b) processes for modifying the germ line genetic identity of human beings
c) uses of human embryos for industrial or commercial purposes
d) processes for modifying the genetic identity of animals which are likely to cause them suffering without any substantion medical benefit to man or animal, also animals resulting from such orocesses.

Question 9

Computer programmes

Answer 9

Code of the computer program can be protected with COPYRIGHT. However, the underlying ideas of a particular program nor a programs particular functionality is protected by copyrights.

Question 10

Patent

Answer 10

1. New
2. Inventive step
3. Industrial application

Question 11

General practice in Patent

Answer 11

The EPO and national patent offices of EPC contracting states are granting patents to inventions which make use of a computer program. Partent protection is still not available for mere computer programs, CII are patentable in Europe. This practise has been strongly criticised by the open source communituies which prev enteed it from being implemented in the EPC during the Diplomatic Conference in 2000.

Issue: distinguishing a patentable CII from unpatentable computer programs “aws such”, jf. s. 176

Question 12

Inventive step of a mixed-type invention

Answer 12

Inventive step of a mixed-type invention all those features which contribute to the technical character of the invention are taken into account.

Question 13

Problem-solution approach to mixed-type inventions

Answer 13

i) the features which contribute to the technical character of the invention are determined on the basis of the technical achieved in the contecxt of the invention.
ii) a suitable starting point in theprior art is selected as the closest prior art with a focus on the features contributing to the technical character of the invention identified in step (i).
iii) the differences from the closest prior art are identified. The technical effects of these differences, in the context of the claim as a whole are determined in order to identify from these differences the features which make a technical contribution and those who do not
a. if there are no difference, an objection under art. 54 is raised.
b. in the differneces do not make any techinal contribution, an objection under art. 56 is raised. the reasoning for the objectin that is the subject-matter of a claim cannot be inventive if there is no techincal contribution to the prior art.
c) if the differences include features making a technical contribution, the following applies:
- the objective technical problem is formulated on he basis of the technical effects achieved by these features.
- if the claimed technical solution to the objective technical problem is obvious to the person skilled in the art, an objection under art. 56 is raised.

Question 14

Patents for computerised business methods

Answer 14

EPO does not grant patents for computerised business methods due to lack of an inventive steop. They do not grant patents for merely solve a business problem.

Question 15

Mathematical methods

Answer 15

Mathematical methods are in general excluded from patentablioloty according to the EPC.

With exception of naural network in haeart moniroting apparatus for identifying irregular heartbeats
or the classification of digital images, videos, audor or speech signals based on low-level features.

(if all patentability requirements are fufilled).