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In certain jurisdictions' patent law, industrial applicability or industrial application is a patentability requirement according to which a patent can only be granted for an invention which is susceptible of industrial application, i.e. for an invention which can be made or used in some kind of industry. In this context, the concept of "industry" is far-reaching: it includes agriculture, for instance. An example of invention which would not be susceptible of industrial application is "a method of contraception [...] to be applied in the private and personal sphere of a human being".
European Patent Convention
At the European Patent Office (EPO), the requirement that an invention is susceptible of an industrial application has generally been taken to be more or less automatically fulfilled until a 2005 decision of the Boards of Appeal of the EPO saw this requirement analysed in new detail. In decision T 870/04 it was held that the mere fact that a substance can be made in some way does not necessarily mean that the requirements of Article 57 EPC are fulfilled, unless there is also some "profitable use" for which the substance can be employed.
When an alleged invention does not comply with the generally accepted laws of physics, the industrial application requirement is related to the requirement of sufficiency of disclosure, i.e. the fact that a "patent application must disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art".
Article 52(4) EPC [needs update] excludes "methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practised on the human or animal body" from patentability, because these methods are regarded as not susceptible of industrial application. The purpose of this exclusion is "to deny patent protection to methods which serve medical purposes, so that no one could be hampered in the practice of medicine by patent legislation."
References and notes
- Decision T 74/93 of the Boards of Appeal of the European Patent Office
- Decision T 870/04
- "Industrial application is also lacking if the product or process is contrary to the laws of physics (T 541/96), such as for example a perpetual motion machine (...)." in Legal Research Service for the Boards of Appeal, European Patent Office, Case Law of the Boards of Appeal of the EPO (8th edition, July 2016), i.e.1.1 "Invention and industrial application".
- See also, for cases at the United Kingdom Patent Office (UK-IPO), UK-IPO gets tougher on perpetual motion, IPKat, 12 June 2008. Consulted on June 12, 2008.
- Article 52(4) EPC [needs update]
- Special edition 6/2007, EPO Board of Appeal Case Law 2006, pages 17-18.
- Article 57 EPC (European Patent Convention)
- Article 33(4) PCT (Patent Cooperation Treaty)
- Article 1 of the Paris Convention for the Protection of Industrial Property, see in particular paragraph (3) for guidances as to how the word "industry" should be interpreted.