Invention As Defined By Patent Law
See also: patentability
The term invention is also an important legal concept and central to patent law systems worldwide. As is often the case for legal concepts, its legal meaning is slightly different from common usage of the word. Additionally, the concept of legal invention is quite different in American and European patent law.
In Europe, the first test a patent application must pass is, "Is this an invention?" If it is, subsequent questions are whether it is new, and sufficiently inventive. The implication—counter intuitively—is that a legal invention is not inherently novel. Whether a patent application relates to an invention is governed by Article 52 of the European Patent Convention, that excludes, e.g., discoveries as such and software as such. The EPO Boards of Appeal decided that the technical character of an application is decisive for it to represent an invention, following an age-old German tradition. British courts don't agree with this interpretation. Following a 1959 Australian decision ("NRDC"), they believe that it is not possible to grasp the invention concept in a single rule. A British court once stated that the technical character test implies a "...restatement of the problem in more imprecise terminology."
In the United States, all patent applications are considered inventions. The statute explicitly says that the American invention concept includes discoveries (35 USC § 100(a)), contrary to the European invention concept. The European invention concept corresponds to the American "patentable subject matter" concept: the first test a patent application is submitted to. While the statute (35 USC § 101) virtually poses no limits to patenting whatsoever, courts have decided in binding precedents that abstract ideas, natural phenomena and laws of nature are not patentable. Various attempts were made to substantiate the "abstract idea" test, which suffers from abstractness itself, but eventually none of them was successful. The last attempt so far was the "machine or transformation" test, but the U.S. Supreme Court decided in 2010 that it is merely an indication at best.
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Famous quotes containing the words invention, defined, patent and/or law:
“In all her products, Nature only develops her simplest germs. One would say that it was no great stretch of invention to create birds. The hawk which now takes his flight over the top of the wood was at first, perchance, only a leaf which fluttered in its aisles. From rustling leaves she came in the course of ages to the loftier flight and clear carol of the bird.”
—Henry David Thoreau (1817–1862)
“Coming to terms with the rhythms of women’s lives means coming to terms with life itself, accepting the imperatives of the body rather than the imperatives of an artificial, man-made, perhaps transcendentally beautiful civilization. Emphasis on the male work-rhythm is an emphasis on infinite possibilities; emphasis on the female rhythms is an emphasis on a defined pattern, on limitation.”
—Margaret Mead (1901–1978)
“The cigar-box which the European calls a “lift” needs but to be compared with our elevators to be appreciated. The lift stops to reflect between floors. That is all right in a hearse, but not in elevators. The American elevator acts like the man’s patent purge—it works”
—Mark Twain [Samuel Langhorne Clemens] (1835–1910)
“It is the way unseen, the certain route,
Where ever bound, yet thou art ever free;
The path of Him, whose perfect law of love
Bids spheres and atoms in just order move.”
—Jones Very (1831–1880)