Which of the Following Are Not Patentable?
Biological processes, medicinal methods, algorithms, and business methods. Of all of these, which of the following are not patentable? Here are some examples:
The EPO has determined that biological processes are non-patentable. It has ruled that plant and animal varieties are not patentable because they are obtained exclusively by biological processes. This decision contradicts earlier EPO decisions (Tomatoes II, Broccoli II) that held that biological processes are not patentable. However, this decision will not affect patents granted in Europe before 1 July 2017.
While plants and animals are still deemed natural products, the European Patent Office has now officially settled the question of their patentability. The ruling does not affect European patents granted prior to July 1, 2017 or pending applications that were submitted before then. Therefore, the European Patent Office should take immediate action to ensure that these rules are interpreted correctly. The Enlarged Board of Appeal will publish the final decision within the next year. In the meantime, applicants should review the latest EPO decisions to make sure that their patents are not invalidated.
While plants obtained by the technical process are patented, there are some cases where they are not. For example, a process for producing a seedless melon involves the pollination of sterile female flowers of a triploid plant. These plants cannot undergo meiosis. As such, the process is not essentially biological. However, it does involve asexual crossing of genomes, and selection of plants.
Several EPO Boards of Appeal have confirmed that biotech products are not patentable. Recent cases such as Broccoli/Tomato II (G2/13) and Tomato II (G2/12) have reaffirmed the exclusions in Biotech Directive. However, the Boards of Appeal have ruled that biological processes are not patentable, even when the plant or animal products are derived from the biotech process.
The EPC does not define ‘essentially biological processes’, so it’s unclear what exactly the term means. The phrase essentially refers to the process of obtaining a product from an animal or plant. The term ‘biological processes’ has no specific meaning in the Indian Patent Act, although the United Kingdom has provided a more concrete definition. The US, on the other hand, has not defined the term and leaves it vague as to what it covers.
Medicinal methods are not patentable because they do not have an industrial effect. The Hippocratic Oath and medical codes of ethics, which are part of the scientific community, express the professional norms of the medical profession. In addition, patenting medical procedures is against the rules of health insurance, which is the most common cause of malpractice actions. Further, medical malpractice actions may prevent the practice of a physician.
While the patentability of medical methods varies by country, most countries explicitly exclude them from being patentable. Japan, for example, prohibits methods involving pharmaceuticals, although it permits cosmetics, in vitro diagnostics, and medically derived compounds. While India and China specifically prohibit the patenting of medical treatments, Australian patent law does not prohibit the patentability of diagnostic methods. In addition, claims must include diagnostic and treatment steps.
Furthermore, medical methods do not have the same protection as other inventions. This makes them less valuable than other types of inventions. Moreover, patents for medical methods may limit the dissemination of information, which can jeopardize the requirement of “novelty.”
Nonetheless, despite the fact that the Australian Patents Act does not specifically exclude the patentability of surgical and therapeutic methods, the EPO still grants protection for some medical procedures. This includes methods that involve therapeutic drugs, including those that are applied to the human or animal body. Despite this, the patentable status of many medical inventions is still uncertain, as a result of the various exceptions to the patentability of methods.
In addition, medical methods that use an isolated human body, such as an ultrasound, are not considered to be “methods of diagnosis”. Therefore, they do not qualify as methods of diagnosis. However, the EPO Enlarged Board of Appeal in Rescare applied the exclusion narrowly. In the G1/04 decision, a veterinary diagnosis method may be patented if it attributes the deviation to the clinical picture. Further, a diagnostic method cannot be used for therapeutic purposes.
While algorithms are not patentable in the Indian patent office, they are not excluded from the scope of copyrights. Moreover, while algorithms are not patentable in the country, the US courts have found ways to patent them implicitly, and without requiring the source code. US patents are issued on the “series of steps performed” by an algorithm. While a patent is not granted on the algorithm itself, it must have a technical effect on the technology being patented.
Some mathematical algorithms are excluded from patent protection. However, they may be patented if they have practical applications. This is the case with the Lorentz transform, which is a law of nature. It is a method of calculating the relationship between two frames of data. A patent on this method is not granted because it is not the only method of computing the relationship between two frames of data. In addition, this method is also not considered to be prior art. The legal threshold for patenting computer programs has been steadily increasing over the last few decades.
It is unclear whether the CJEU’s decision on algorithms is the end result of the EU’s infringement case. The CJEU noted that the software directive doesn’t protect algorithms separately as part of a computer program. The reasoning is straightforward. Under the EU’s WCT, the EU is required to comply with the Berne Convention. In any case, algorithms cannot achieve equal protection under the WCT.
While an algorithm may be abstract and not patentable, the application itself is not. The patent must be capable of performing useful functions. For example, if a machine performs an image recognition algorithm, it can be claimed under a business method claim. A software patent can be more narrowly focused, or it can be more general in scope. It must also be applicable to the specific application, in the context of a particular market.
While the PTO acknowledges that algorithms are hard to patent, the current approach is far from ideal. The PTO can’t assess an algorithm’s obviousness because it’s abstract, but a computer program can be based on it, and it must be “foundational” to a particular scientific field. However, many computer programs are built upon algorithms that are not patentable. There are a few ways to improve the existing patent examination procedure.
Some patents protect old business methods, but not all of them. The courts have considered the patentability of these old business methods in a variety of ways. One such example involves State Street Bank, which uncovered an asset that many businesses would be interested in. In short, the bank had found a way to provide a service that is useful, novel, and nonobvious. Nonetheless, the court found that this particular business method was not patentable.
Until the early 1990s, business methods were not patentable. That changed when computers became widespread and the internet became common. In a 1992 case, the Federal Circuit – a U.S. appellate court specializing in patent law – allowed companies to patent their methods of doing business. In State Street Bank v. Signature Financial Group, the process of converting a dollar amount into the final share price of a company’s stock was patented.
Business method patents must address the technical problem posed by the invention. Patents covering business methods should address this problem and demonstrate how this method addresses a particular business need. Moreover, the invention should have a broad disclosure, so that it can be patented in a foreign country. Moreover, the patent practitioner should draft the patent to maximize its patentability in foreign jurisdictions. So, if you’re planning to apply for a patent for your business method, consider hiring a patent attorney.
As long as the method described in the patent application has novelty, utility, and nonobviousness, it is a process, and a claim that describes a general way of doing business cannot be patented. In fact, federal law explicitly contemplates the existence of business methods patents. As stated in section 273(b)(1), a method is a way of doing business. If it merely describes a particular business method, it does not qualify as a process under SS 101.
One of the biggest concerns with business method patents is that it can dampen innovation. This argument has been made in the chemical industry, telephony, and software, but all of these industries have increased their innovation as a result of allowing businesses to patent them. And it’s important to note that the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights does not address business method patents.