6.3.8.6.3 Industrial Applicability

Also in this Chapter:

• 6.3.8.6.1 Novelty
• 6.3.8.6.2 Inventive Step

Key Legislation:

Regulations under the PCT:

• Rule 43bis Written Opinion of the International Searching Authority
• Rule 66.2 Written Opinion of the International Preliminary Examining Authority
• Rule 70.8 Explanations under Article 35(2)

PCT ISPE Guidelines:

• para A14.01 Industrial Applicability

Related Chapters:

• 9.17.12 Industrial Applicability - Positive Statement

A claimed invention shall be considered industrially applicable if, according to its nature, it can be made or used (in the technological sense) in any kind of industry. "Industry" shall be understood in its broadest sense, as in the Paris Convention for the Protection of Industrial Property. Industry therefore includes any physical activity of a technical character, that is, an activity which belongs to the useful or practical arts as distinct from the aesthetic arts; it does not necessarily imply the use of a machine or the manufacture of an article and could cover a process for dispersing fog, or a process for converting energy from one form to another.

Focusing on the general common characteristics of the industrial applicability requirements, an invention that is inoperative, for example, an invention which is clearly non-operable in view of well-established laws of nature, does not comply with either of the industrial applicability requirements. This type of invention is considered either as having no application in industry or as not being useful for any purpose because it does not work.

For the assessment of industrial applicability, the following steps shall be applied:

• determine what the applicant has claimed, and

• determine whether a person skilled in the art would recognize the claimed invention to have industrial applicability.

It should also be noted that the term ‘industrially applicable’ is synonymous with the term ‘utility’.  Thus an invention will meet the requirements for industrial applicability if it has a utility that is:

a. specific – the use is specific to the subject matter of the invention and not a generic use;

b. substantial – no further research is required in order to identify a ‘real’ or specific use; and

c. credible – the use is logical and consistent with the state of the art.

Inventions that contravene well-established laws of nature and are therefore non-operable (e.g. perpetual motion machines, cold fusion, and “spiritual DNA” ), do not comply with either the industrial applicability requirement or the utility requirement. These types of inventions are considered either as having no application in industry or as not being useful for any purpose, because they do not work (refer to Rules 43bis, 66.2(a)(ii), 70.8)

“One situation where an assertion of utility would not be considered credible is where a person skilled in the art would consider the assertion to be “incredible in view of contemporary knowledge” and where nothing offered by the applicant would counter what contemporary knowledge might otherwise suggest.”

Further information on industrial applicability is given in Appendix A14.01[1] of the PCT International Search and Preliminary Examination Guidelines.

Where the claimed invention has industrial applicability, a positive statement to this effect is to be included (see PERP code T644 [9.17.12 Industrial Applicability - Positive Statement]).