Patents and excluded subject matter
Patents and excluded subject matter

The following IP practice note provides comprehensive and up to date legal information covering:

  • Patents and excluded subject matter
  • What is a patent?
  • Patentability
  • What is an invention?
  • Novelty
  • Invention must be new
  • Priority date
  • State of the art (prior art)
  • Made available to the public
  • Person skilled in the art—skilled addressee
  • More...

What is a patent?

A ‘patent’ is a document conferring so-called monopoly rights to an inventor following a formal application and registration procedure. A patent protects new inventions and may cover aspects such as how things work, what they are made of and how they are made. The rationale behind patents is that they encourage innovation by rewarding the patent owner (patentee) with 20 or more years during which they can prevent others from making, using, importing or selling the invention without permission (even if they are not deliberately infringing), which is why they are said to confer ‘monopoly’ rights.

Whether an inventor’s work can be patented often comes down to the drafting skill of the patent attorney who writes the patent and how well the attorney conveys the inventive concept in the patent application. Identifying the inventive concept is done by working out the meaning of the patent claim, then identifying its essence and limitations. For example, the invention may be the idea of using established techniques to do something that no one had previously thought of doing, or finding a way to isolate a compound which people had wanted to do, but previously failed to do.


Section 1 of the Patents Act 1977 (PA 1977) provides that a patent will only be granted for an invention that:

  1. is new

  2. involves an inventive step

  3. is capable

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