Brief review of patentability requirements: novelty, inventive step, and industrial application

Abstract

The study carries out a brief analysis of the substantive requirements of patentability — novelty, inventive step and industrial application — at the international level, taking as its parameter the universally accepted rules, especially among the signatory countries of the TRIPS Agreement, without prejudice to the specific features inherent in each legal system. Starting from Article 7 of the TRIPS Agreement and the minimum standards it lays down, it addresses novelty in the light of the state of the art and of the several meanings attributed to the expression; inventive step, assessed by non-obviousness to the person skilled in the art and marked by a more intense degree of judicial subjectivity; and industrial application, understood as the capability of the product, process or use of being manufactured or used in any kind of industry or trade, drawing on the Paris Convention, Directive 98/44/EC and decisions of the Technical Boards of Appeal of the European Patent Office. It maintains that industrial application requires that the technical rule be executable and reproducible, excluding results dependent on technically uncontrollable conditions and the merely private or non-commercial sphere of exploitation.