Patent Law and Theory
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Patent Law and Theory

A Handbook of Contemporary Research

Edited by Toshiko Takenaka

This major Handbook provides a comprehensive research source for patent protection in three major jurisdictions: the United States, Europe and Japan. Leading patent scholars and practitioners join together to give an innovative comparative analysis both of fundamental issues such as patentability, examination procedure and the scope of patent protection, and current issues such as patent protection for industry standards, computer software and business methods. Keeping in mind the important goal of world harmonization, the contributing authors challenge current systems and propose necessary changes for promoting innovation.
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Chapter 12: Utility and Industrial Applicability

Christopher Wadlow


Christopher Wadlow Introduction With the WTO TRIPs Agreement1 in mind, this chapter addresses both utility and industrial applicability. According to TRIPs, Article 27(1): [P]atents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. [Fn]. [Fn]. For the purposes of this Article, . . . ‘capable of industrial application’ may be deemed by a Member to be synonymous with . . . ‘useful’ . . . . Outside TRIPs, and in present-day usage, ‘useful’ and ‘utility’ are terms of art in American patent law, whereas ‘industrial application’ is a term of art in European Law.2 The Patent Act (1952) of the United States provides:3 Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof may obtain a patent therefor, subject to the conditions and requirements of this title. Conversely, Article 52(1) of the European Patent Convention formerly provided:4 1 Agreement on Trade Related Aspects of Intellectual Property Rights (Marrakesh, 1994). 2 It may be assumed that any developed system of patent law will have some kind of requirement corresponding to at least one of these, most probably that of industrial application, but legal systems outside the American and European traditions are not intended to be covered by this chapter. Japanese law uses ‘industrial application’. Common law countries (such as Australia, Canada and New Zealand) may retain ‘utility’ in the former English sense, as...

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