Industrial applicability is a requirement for an invention to receive a patent from the European Patent Office (EPO), meaning it must be useful in any productive effort. The EPO is responsible for granting patents and supervising patent law in signatory countries, and the requirement stems from Article 57 of the European Patent Convention (EPC). The convention also specifies areas where inventions cannot be patented, but new developments based on their use to create a technical effect useful in a new way can be. This differs from the utility standard used in the United States, where business methods can be patented, including administrative software.
Industrial applicability is an intellectual property term that refers to one of the requirements that an invention must meet in order to receive a patent from the European Patent Office (EPO). To meet this requirement, an invention must be useful in an industry. It is important to note that here the word industry is not used in its strict sense to refer only to manufacturing or heavy machinery, but in a broader sense encompassing any type of productive effort. An invention is therefore also said to have industrial applicability if it is useful in areas such as commerce, agriculture or mining.
The European Patent Office is a branch of the European Patent Organization (EPOrg), an international organization responsible for granting patents and supervising patent law in signatory countries. Almost all existing countries in Europe are member states of the Organization or extension states, which are not members but have signed agreements recognizing the validity of patents issued by the EPO. It is similar to utility, one of the requirements for an invention to be patentable in the United States, but it is not identical. As a result, some inventions are patentable in the United States but not in EPOrg signatory states.
The requirement that a patented invention must have industrial applicability stems from Article 57 of the European Patent Convention (EPC), the treaty that created the EPOrg in 1973. The convention also specifies the areas in which inventions cannot be patented. These include theories and discoveries in science and mathematics, specific ways of presenting information, and rules or methods for carrying out activities such as games, business practices, and thought processes. It also excludes artistic or aesthetic designs and computer programs from patentability.
This is followed by the qualifier that these restrictions only apply to attempts to patent inventions in these areas as such. The precise interpretation of this part of the convention has been a major source of controversy, but the approach commonly used by the EPO is that while new developments in the above areas are not patentable, inventions based on their use to create a technical effect useful in a new way are. This can include computer software. For example, mathematical or decision-making algorithms aren’t patentable per se, but a computer program that uses them to make a computer or other machine work more efficiently is.
This is one area where the industrial applicability standard can diverge significantly from the utility standard used in the United States. For example, in the US, business methods can be patented. However, exactly which business methods satisfy all patentability requirements is the subject of intense controversy, and the US government denies patent applications for business methods far more frequently than applications for more conventional inventions.
This has significant consequences for software patents. According to the industrial applicability standard used by the EPO, software is patentable only if it has a direct technical application. In the United States and other jurisdictions that use the utility standard, however, business and administrative software can also be patented. As a result, software patents are harder to obtain and much less common in EPOrg member countries.
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