A Review of the ‘As Such’ Exclusions to Patentable Subject Matter in the United Kingdom: Lessons for Canadian and American Courts
31 Pages Posted: 20 Apr 2010 Last revised: 7 Dec 2014
Abstract
In this paper, I examine the ‘as such’ exclusions to patentable subject matter found in sub-section 1(2) of the British Patents Act 1977. Sub-section 1(2) essentially covers abstract subject matter that is either ephemeral in nature (like discoveries, scientific theories and mathematical methods), or subject matter that is generally covered by the law of copyright insofar as the patent application relates to that those items in-and-of themselves (‘as such’).
This sub-section is of particular interest because it is a statutory codification of certain a priori ‘truths’ or ‘skills’ that seem inappropriate to protect through a patent monopoly. These exclusions tend to be found across other countries (like Canada and the United States) – a few of the exclusions are found in statute, but most of the sub-section 1(2) exclusions in Canada and the United States are judicially created. Examining the British approach to these exclusions is instructive of how other Courts might view these exemptions. Especially since British Courts appear to take a strict approach to excluding patents based on subject matter eligibility; and the exclusions from patentable subject matter found in countries like Canada and the United States are overwhelmingly judicially created despite the fact that patent statutes of those countries do not exclude many, or all, of the ‘as such’ exclusions.
Keywords: patents, patentable, subject matter, Europe, England
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