[Random-bits] Text of WIPO DRAFT SUBSTANTIVE PATENT LAW TREATY

[James Love]

This is a link to the October 16, 2002 draft of the WIPO Substantive Patent
Law Treaty, and a few comments on Article 12, which relates to patent scope.
Note what was eliminated in this draft, and what was added.   Jamie

http://www.wipo.int/scp/en/documents/session_8/pdf/scp8_2.pdf


Article 12

Conditions of Patentability

    [CPTech note:  All of Article 12(1)(b) was deleted.  12(1)(b) contained a
list on common and important exclusions from patentability, which would have
been mandatory in earlier proposals.]


<----------begin text struck from Article 12(1)(b)-------------->

(1)	[Subject Matter Eligible for Protection]   . . .


(b)	Notwithstanding subparagraph (a), the following shall not be considered 
as subject matter eligible for protection:

	(i)	mere discoveries;

	(ii)	abstract ideas as such;

	(iii)	scientific and mathematical theories and laws of nature as such;

	(iv)	purely aesthetic creations

<--------------end deleted exclusions in 12(1)(b)------------->

CPTech note:  These are the controversial Article 12(4) choices on utility.
   The USA had demanded that the TRIPS language requiring patentability in
all fields of technology be replaced by an even broader requirement for
patents in "any field of activity."   Among the areas directly related to
this change are the issuance of business method patents and scope of
biotechnology patents.

<----------begin Article 12(4)----------------------------->

	(4)	[Industrial Applicability/Utility]  A claimed invention shall be
industrially applicable (useful).  It shall be considered industrially
applicable (useful) if it


[Alternative A]
can be made or used for exploitation in any field of [commercial] activity.


[Alternative B]
can be made or used in any kind of industry.  "Industry" shall be understood
in its broadest sense, and shall not be limited to industry and commerce
proper, but include agricultural and extractive industries.

[Alternative C]
has a specific, substantial and credible utility.

[WIPO COMMENT:  Alternative A intends to provide a single definition
accommodating both “industrial applicability” and “utility”, although a
Contracting Party may use either term under the applicable law.  The second
sentence of Alternative B is modeled after Article 1(3) of the Paris
Convention.]

<--------------end Article 12(4)----------------------------->


Note that the entire Article 12(5) on discretionary exceptions to
patentabity clause was eliminated altogether in this draft.

<---------begin deleted text in Article 12 (5)---------------->

	(5)	[Exceptions] Strikeout:

	Notwithstanding paragraphs (1) to (4), a Contracting Party
	may, in accordance with the Regulations, exclude certain
	inventions from patentability.

	[Reserved]

<----------end article 12 (5) deleted text----------->

-- 
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James Love, Consumer Project on Technology
http://www.cptech.org, mailto:love@cptech.org
voice: 1.202.387.8030; mobile 1.202.361.3040


-- 
------
James Love, Consumer Project on Technology
http://www.cptech.org, mailto:love@cptech.org
voice: 1.202.387.8030; mobile 1.202.361.3040