Can Only Physical Subject-Matter Be Patentable?

24 Pages Posted: 23 Aug 2013 Last revised: 23 Dec 2013

Date Written: December 23, 2013


In Europe, only technical subject-matter is susceptible for patent, and in the United States abstract ideas are excluded – but no one knows precisely how to interpret these rules. Isn’t it the simplest solution to provide that only physically tangible matter can be patented? In case law from various jurisdictions we find that the application of a physicality requirement invariably fails, and we analyse the reasons for these failures. Ultimately one should acknowledge that a physicality requirement is only an indirect means to exclude "inappropriate" subject-matter from patentability, such as certain business methods. Patent law traditionally excludes certain subject-matter for "obvious" reasons. That may be interpreted as: for reasons inherent to the system and purpose of patent law. hence we look for the natural boundaries of the domain of patent law, and we find that only suited (and needed) to appropriate a certain type of knowledge. That awareness may be helpful for the courts, that are very confused about the "patentable subject-matter" limitations after many fruitless clarification attempts on both sides of the Atlantic.

Keywords: patents, subject-matter, technicity, physicality

JEL Classification: K11

Suggested Citation

Bakels, Reinier B., Can Only Physical Subject-Matter Be Patentable? (December 23, 2013). Available at SSRN: or

Reinier B. Bakels (Contact Author)

Independent ( email )

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