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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