Before proceeding to apply for a patent for inventions or products, it is essential that you research whether they can or cannot be patented. Keep reading to avoid starting the process with the Spanish Patent and Trademark Office only to have it rejected for this reason.
Which law determines the products and elements that cannot be patented?
As with everything related to patents and their registration in Spain, we must consider Law 24/2015, of July 24, on Patents. And before identifying which elements cannot be patented, we must clarify which ones can be registered in this way. In both cases, it is relevant to consult Articles 4 and 5 of the aforementioned legal instrument.
To begin, Article 4 specifies that inventions are patentable, in any area of technology, if they are truly novel. That is, those that involve an inventive step and have industrial application. This includes inventions whose subject matter is a product consisting of or containing biological material, or a process by which biological material is produced, processed, or used.
From this perspective, biological material isolated from its natural environment or that which is the product of a technical process can be considered the object of an invention. This is regardless of whether said material previously existed in a natural state.
For these purposes, in its section 3, the aforementioned Article 4 clarifies what the Law understands by “biological material,” defining it as:
“… any material containing genetic information and capable of self-reproducing or being reproduced in a biological system and by «microbiological process», any process using microbiological material, involving an intervention on it, or producing microbiological material.”
What is Not Considered Inventions by the Patent Law?
Considering the above, the aforementioned Law will not consider the following elements as inventions:
- Discoveries, scientific theories, and mathematical methods.
- Literary or artistic works or any other aesthetic creation, as well as scientific works.
- Plans, rules, and methods for intellectual or economic-commercial activities, as well as for games, are also not patentable. Similarly, computer programs cannot be patented.
- Even less patentable are forms of presenting information. However, it is possible to patent the subject matter or activities mentioned in such information. For this, the patent application procedure or the patents themselves must refer exclusively to one of those subject matters as such.
What Products and Elements Cannot Be Patented?
Next, Article 5 of the aforementioned Patent Law establishes the exceptions to patentability. Specifically, inventions whose commercial exploitation contravenes public order or morality cannot be patented. At this point, the legal instrument clarifies that the exploitation of an invention should not be considered as such merely because it is prohibited by a legal or regulatory provision. Specifically, the following will not be patentable according to the above:
- Procedures for cloning human beings and those used to modify the germline genetic identity of human beings.
- The use of human embryos for industrial or commercial purposes.
- Procedures that in any way modify the genetic identity of animals and entail suffering for them without significant medical or veterinary utility for humans or animals. Animals resulting from such experiments will also not be patentable.
- Along the same lines, plant varieties and animal breeds cannot be registered as patents. Conversely, inventions whose subject matter is plants or animals can be patented if the technical feasibility of the invention extends beyond a specific plant variety or animal breed.
- Likewise, it is not possible to patent, according to the Law we are analyzing, essentially biological processes for obtaining plants or animals. In this regard, the legal instrument considers “essentially biological” those processes that constitute entirely natural phenomena. For example, crossing or selection. It should be noted that this provision does not affect the patentability of inventions whose purpose is to achieve a microbiological process. Or, to obtain any other technical process or a product resulting from said processes.
Surgical and therapeutic treatments cannot be patented.
Indeed, the Law we are analyzing does not consider surgical or therapeutic treatment methods of the human or animal body to be patentable. Likewise, diagnostic methods applied to the human or animal body cannot be patented. This is with the exception of products and, specifically, substances or compositions, including inventions of equipment or instruments necessary to put such methods into practice.
Even less patentable is the human body in its various stages of constitution and development. This includes the mere discovery of one of its elements; for example, the complete or partial sequence of a gene. However, an element isolated from the human body or otherwise obtained through a technical process, including the complete or partial sequence of a gene, can fall into the category of patentable invention. This is regardless of whether the structure of such element is identical to that of another natural element. In these cases, it is essential that the patent application explicitly indicates the industrial application of a complete or partial gene sequence.
Finally, it is not permitted to patent a simple deoxyribonucleic acid (DNA) sequence without an indication of a specific biological function.
Can computer solutions not be patented?
A unique case regarding products and elements that cannot be patented is that of software solutions. As mentioned, Article 4 of the Patent Law contemplates the exclusion of computer programs as a patentable product. The European Patent Convention (EPC) expresses the same in its Article 52, literal C. Certainly, these laws protect only inventions, and truly, software is “built” into a computer program. To a large extent, these solutions require algorithms that are merely mathematical methods and involve graphical interactions that make it possible to display information. These three elements (computer programs, mathematical methods, and ways of presenting information) appear on the exclusion list.
Even so, it is relevant to remember that the same Article of the aforementioned Law states that demonstrably innovative inventions, in any technological area, are patentable. The requirements for this are that they result from an inventive activity and have a concrete industrial application.
In this regard, the mentioned articles of both legal instruments establish that the subject matter or activities specified in the list only apply if the patent refers particularly to one of them as such. What does this mean? Well, it means that software limited to being simple isolated lists of instructions and that does not solve specific industrial technical problems is not patentable.
Patentable Software Solutions
According to this, software solutions would indeed be patentable if they retrieve a method through steps executed by the software, regardless of the programming language that allows such execution. In these cases, the European Patent Office uses the designation “computer-implemented invention” (CII). This encompasses computer programs, inventions whose implementation requires a computer or a computer network. Even if it requires any programmable system in which part of the invention’s features are partially or fully executed by a computer program.
From this perspective, some examples of patentable computer-implemented inventions would be:
- Methods that require a set of instructions for their implementation.
- Specific data structures if they themselves solve technical problems.
- Computer systems provided with client-server structures.
- Encryption techniques for communications.
- Devices capable of transmitting and receiving information.
- Physical representation models used to simulate physical entities.
Do You Need to Patent Your Products or Inventions? We Advise You
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