What is Industrial Applicability?

John Markley
John Markley
Man with hands on his hips
Man with hands on his hips

Industrial applicability is a term from intellectual property referring to one of the requirements that an invention must satisfy in order to be eligible to receive a patent from the European Patent Office (EPO). To fulfill 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 narrow sense to refer only to manufacturing or heavy machinery, but in a broader sense that encompasses any sort of productive effort. An invention is thus also said to have industrial applicability if it is useful in areas such as commerce, agriculture, or mining.

The European Patent Office is an arm of the European Patent Organization (EPOrg), an international organization responsible for granting patents and overseeing patent law in signatory countries. Almost all existing countries in Europe are either 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 invention to be patentable in the United States, but not identical. Consequently, some inventions are patentable in the United States but not in EPOrg signatory states.

The requirement that a patented invention must have industrial applicability comes from Article 57 of the European Patent Convention (EPC), the treaty that created EPOrg in 1973. The convention also specifies areas in which inventions are not eligible for patents. These include theories and discoveries in science and mathematics, specific ways of presenting information, and rules or methods for performing activities such as games, business practices, and mental processes. It also excludes art or aesthetic designs and programs for computers from patentability.

This is followed by the qualifier that these restrictions apply only 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 areas above are not patentable, inventions based on using them to create a useful technical effect in a novel way are. This can include computer software. For example, mathematical or decision-making algorithms are not in themselves patentable, but a computer program that uses them to make a computer or other machine run more efficiently is.

This is an area where the industrial applicability standard can diverge significantly from the utility standard used in the United States. For example, in the United States, business methods are eligible for patents. Precisely which business methods fulfill all patentability requirements is a matter of intense controversy, however, and the United States government denies patent applications for business methods much more frequently than applications for more conventional inventions.

This has significant consequences for software patents. Under 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, on the other hand, business and administrative software are also eligible for patents. Software patents are more difficult to receive and much less common in EPOrg member countries as a result.

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