Preconditions for Patentability
A patentable invention must satisfy the following conditions:
It must be novel.
It must not have been made public prior to filing of the patent application.
It must constitute an inventive step, meaning it must differ essentially from already known inventions in a way that would not be obvious to a person skilled in the relevant art.
It must be capable of industrial application.
In order to be patentable, the invention must be new with respect to information which has been made available to the public before the patent application was filed. For example, if the applicant makes the invention public before filing the patent application, the invention cannot be patented. Therefore, the invention should be kept undisclosed until the patent application has been filed. In addition to publication, the invention may become public for instance, if it has been used or utilized in a public manner. Furthermore, continued use within the company may result in the invention becoming public, if a sufficiently large number of persons have thus become aware of the invention.
Patent may be granted if the invention is new compared to information publicly available in the relevant field. When assessing the invention, information which available in the public domain, whether in writing or otherwise, in any language and anywhere in the world, shall be regarded as publicly available information. The comparison is done by reference to the average level of knowledge of experts in the relevant field. If an expert could, by applying his/her skills, solve the relevant issue in the same manner as described in the patent application, the invention is not patentable.
Furthermore, the invention to be patented must be distinct from previous inventions in a way that is not obvious to experts in the relevant field. The criteria of distinctiveness is also important in the sense that an invention, which offers a different technical solution to an already existing problem, can be sufficiently inventive if it is produced in a much cheaper way compared to existing solutions. It has, for instance, been held in European case law that an epilator was sufficiently distinctive when its operating mechanism was made of rubber instead of metal, which was used in epilators available in the market. In Finland, distinctiveness of the invention is assessed by the patent engineer of the National Board of Patents and Registration.
In particular, patents are used to protect technical inventions. The invention must provide a new solution to a defined technical problem. In addition, the invention must be capable of industrial application. Industrial applicability should be broadly understood, and it includes, in addition to conventional industry, also methods and devices used in agriculture, forestry and handicrafts. The Patents Act does, however, set out a number of inventions which cannot be patented. These include scientific theories, mathematical methods and accounting methods. In addition, artistic works fall outside the scope of the patent system, and are protected by copyright. Traditionally, computer software, as such, is deemed to fall outside the scope of patentable inventions. According to current practice, computer software is patentable, provided it is of a technical nature, and creates a certain “technical effect”.
A patent can only be granted to the concrete implementation of a new invention, which must be described in the patent application in sufficient details to enable a skilled person to use the invention. The implementation of the invention can be a device, a product or a method, which solves a technical problem in a novel way. Invention of a new idea is, therefore, not patentable as such, unless the concrete realization of the invention has been solved.