What is not patentable?

The Patents Act specifically excludes certain classes of developments from being patentable:

• a discovery, scientific theory or mathematical method;

• a literary, dramatic or artistic work or any other aesthetic creation whatsoever;

• a scheme, rule or method for performing a mental act, playing a game or doing business, or a program for a computer;

• the presentation of information

• an invention the publication or exploitation of which would be generally expected to encourage offensive, immoral or anti-social behaviour; and

• any variety of animal or plant or any essentially biological process for the production of animals or plants, not being a microbiological process or the product of such a process.

In general the exclusions are treated narrowly, that is to say, if an invention includes excluded subject matter but solves a technical problem it should be treated as patentable. The exclusions are also an area of significant divergence across the world.

If you’ve got any concerns about whether a development you are working on is going to be patentable or not, then the sooner you speak to a patent attorney the better.  At worst you may save yourself time and energy working on something that others could then copy with impunity, but better you’ll find that by making a few changes to the direction of your research and development that you can gain a strong patent.

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