Editing Patentability (section)

== National laws ==
=== United States ===
{{Update|section|inaccurate=yes|reason=It seems that it is no longer correct to state that, under U.S. patent law, only inventors can apply for patents. Companies (or, more generally, legal entities) can also apply for patents|date=October 2024}}
Under [[United States patent law]], [[inventor (patent)|inventorship]] is also regarded as a patentability criterion. It is a [[Copyright Clause|constitutional]] requirement, since the language of the US Constitution authorizes "the exclusive Right to their ... Discoveries" to Inventors only. The most significant implication of this requirement, which makes the US practice different from all other countries, is the fact that only actual people-inventors (and not their employer) can apply for a US patent. For this reason, patent applications filed via the [[Patent Cooperation Treaty]] often have two sets of applicants: the physical individuals for the US, and the legal entity (employer) for all other countries.{{Update inline|date=October 2024}}

The requirement to list actual human inventors was further confirmed by [[case law]]: "Inventorship is indeed relevant to patentability under 35 U.S.C. § 102(f), and patents have in the past been held unenforceable for failure to correctly name inventors in cases where the named inventors acted in bad faith or with deceptive intent."<ref>''Board of Education ex rel Board of Trustees of Florida State University v. American Bioscience Inc'', 67 USPQ 2d 1252 ([[United States Court of Appeals for the Federal Circuit|Fed Cir]] 2003) [http://www.ll.georgetown.edu/federal/judicial/fed/opinions/02opinions/02-1109.html]</ref>{{Update inline|date=October 2024}}

Another difference between the practices of the [[United States Patent and Trademark Office]] (USPTO) and other patent offices is the requirements for [[non-obviousness]] and for [[inventive step]]. Although both requirements have the same purpose to prevent patent issuance for routine improvements/modifications (rather than for true inventions), the practical analyses of these criteria are based on different rules and sometimes result in different outcomes (see [[Inventive step and non-obviousness]] for more details).{{Vague|date=October 2024}}

Details on patentability in the U.S. can be found in the [[Manual of Patent Examining Procedure]] or MPEP. This is published by the USPTO and is the reference manual used by both [[patent examiner]]s and patent agents/attorneys. [http://www.uspto.gov/web/offices/pac/mpep/documents/2100.htm Chapter 2100], in particular, gives a comprehensive overview of the standards for patentability, a discussion of the related case law, and guidance on how to overcome an examiner's rejection of a given set of claims.

In the United States, the patent grant is presumptive, e.g. a patent shall issue unless the patent statutes preclude the grant. In other words, the burden is on the Patent Office to prove why a patent should not be granted.<ref>''A person shall be entitled to a patent unless...'' [http://www.uspto.gov/web/offices/pac/mpep/consolidated_laws.pdf 35 USC 102]</ref> Once a patent issues, it is presumed valid and a court may declare it invalid only on the basis of [[clear and convincing evidence]].

=== Europe ===
Terminology in Europe, within the member states of the [[European Patent Organisation]],<ref>European Patent Office, [https://www.epo.org/mobile/about-us/foundation/member-states.html Member states of the European Patent Organisation], accessed 16 November 2022</ref> is slightly different from U.S. terminology. While in the U.S. all patent applications are considered to cover inventions automatically, in Europe a patent application is first submitted to a test whether it covers an invention at all: the first out of four tests of {{EPC Article|52|1}} (the other three being novelty, inventive step, and industrial applicability). So an "invention" in European legal terminology is similar to "patentable subject-matter" in the American system. Articles 52-57 of the European Patent Convention are concerned with patentability.<ref>European Patent Office, [https://documents.epo.org/projects/babylon/eponet.nsf/0/2733CDF5F5B8575CC12588EC00539D22/$File/EPC_17th_edition_2020_en.pdf European Patent Convention], 17th edition, 2020], pg. 108-117</ref>

=== India ===
Under the Indian Patent Act (1970), "inventions" are defined as a new product or process involving an inventive step and capable of industrial application.<ref>{{Cite web|url=http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps2.html|title=Indian Patent Act 1970-Sections|website=ipindia.nic.in|access-date=2019-04-04}}</ref> Thus the patentability criteria largely involves novelty, inventive step and industrial application or usability of the invention. In addition, section 3 of the Patent Act, 1970, also provides a list of non-patentable inventions for e.g. inventions that are frivolous or contrary to well established to natural laws.<ref>{{Cite web|url=http://ipindia.nic.in/writereaddata/Portal/ev/sections/ps3.html|title=What are not inventions - Section 3}}</ref>