Industrial utility: there is no patent as to acts that do not occur except with human intervention

Abstract

The paper examines the requirement of susceptibility of industrial application laid down in Article 15 of Law No. 9,279/96, common to patents of invention and to utility model patents. It places this requirement within the sequence of examination of the application, between the definition of the patentable subject matter under Article 10 and the assessment of novelty (Article 11), inventive step (Article 13), inventive act (Article 14) and categorical exclusions (Article 18). Drawing on Article 1(3) of the Paris Convention for the Protection of Industrial Property, French doctrine, EPO decisions and INPI refusal opinions, it holds that industrial character is defined not by the economic sector in which the solution is applied, but by the manner of application, identified with repeatability, that is, the possibility of the technical solution being repeated indefinitely without personal human intervention. It distinguishes activity (process) from thing (product) and addresses results dependent on uncontrollable factors and acts of a private, intimate nature or performed inside the human body. It concludes that a claim whose sole object is the restriction of a non-industrial activity cannot be granted a patent, for lack of a basic requirement, without prejudice to the limitation of Article 43, I.