Patents

Invention

John Lambert

25 Jan 2005

Neither the Patents Act 1977 nor the European Patent Convention defines an "invention" as such, though both set out in detail the conditions of patentability. However, it is clear from s.60 (1) that an invention can be either a "product" or "process" and, equally, from s.1 (2) that it cannot be

"anything which consists of -
(a) a discovery, scientific theory or mathematical method;
(b) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever;
(c) a scheme, rule or method for performing a mental act, playing a game or doing business, or a program for a computer;
(d) the presentation of information;
.... as such."

Lord Hoffmann declined the opportunity to define an invention in Biogen Inc. v Medeva Plc [1997] RPC 1.

The High Court of Australia had to confront the issue in Advanced Building Systems Pty Ltd. v Ramset Fasteners (Aust) Pty Ltd [1998] HCA 19 because there was a counterclaim for revocation of the claimant's patent on the grounds that it was not an invention. Their honours sidestepped the issue by holding that an invention was something that would have been protected by the Statute of Monopolies 1623.

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