Chapter §25.06 Industrial Applicability Requirement of Foreign Patent Systems

• Jurisdiction: United States

§25.06 Industrial Applicability Requirement of Foreign Patent Systems

[A] Definition of Industrial Applicability

In foreign patent systems and multinational patent treaties, the U.S. utility requirement¹³⁴ roughly corresponds to a mandate that patentable inventions possess "industrial applicability."¹³⁵ The European Patent Convention (EPC) further defines "susceptible of industrial application" to mean whether an invention "can be made or used in any kind of industry, including agriculture."¹³⁶ This language is intended to expressly include agricultural inventions within patentable subject matter while excluding methods of medically treating humans and animals.¹³⁷

[B] Morality/Public Policy Component

In contrast with U.S. law, foreign patent codes do speak to the morality of inventions, although they statutorily categorize this as an issue of potentially patentable subject matter rather than of industrial applicability. For example, the European Patent Convention (EPC) provides that European patents shall not be granted in respect of

(a) inventions the commercial exploitation of which would be contrary to "ordre public" or morality; such exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation in some or all of the Contracting States;. . . . ¹³⁸

This provision permits EPC contracting states to exclude from patenting those inventions whose commercial exploitation is banned...