What can and can't be patented? 19/7/02. By Deirdre Janson-Smith Inventions can be patented – if they can be proved to be new, involve a non-obvious inventive step and be capable of industrial application.

A patent is a legal right of ownership of an 'invention'. Patents are largely concerned with new technological products and processes – how things work, how they are made or what they are made of. Although they have an ancient history, patents really came into full force in the industrial age, and were not designed to protect scientific discoveries or creative works such as books and computer games.

To be patentable an invention must:

• Be new - in the sense that it has never been made public before by anyone else. (The date of application for a patent establishes a claim to be the inventor, even if someone else has developed the same invention in private.)
• Involve an inventive step - meaning that the invention could not have been an obvious step to someone else who had a good understanding and experience of the field.
• Be capable of industrial application - the invention must be a practical piece of apparatus or device, a new material or substance (a new material or drug, for example), or a new process or method of operation.

There are exclusions. An invention is not patentable if it is:

• a discovery
• a scientific theory or mathematical method
• an aesthetic creation such as a literary, dramatic or artistic work
• a scheme or method for performing a mental act, playing a game or doing business
• the presentation of information, or a computer program.

Many of these are protected instead by the law of copyright.

Patent law does now allow a patent for the invention of a new animal or plant variety (traditionally bred); a method of treatment of the human or animal body by surgery or therapy; or a method of diagnosis. However, the rise of genetic engineering has blurred these boundaries. Gene sequences and genetically modified organisms may be patentable.

There are however strict bans on the patenting of any processes for cloning or modifying the germ line genetic identity of human beings; using human embryos other than in research; modifying the genetic identity of animals in such a way to cause them suffering without obvious medical benefit.