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Dissertation
Immaterialgüter- und Wettbewerbsrecht

The Inventive Concept in Patent Law

The ‘inventive concept’ is used by judges to identify the essence or heart of an invention from a patent specification and claims. From civilian origins, the inventive concept is now widely used in UK and common law jurisprudence. This project examines the impacts of this trend on the patent system.

Letzte Änderung: 01.12.12

In every patent case the first task is to identify the invention. Internationally, patent law defines an invention according to the claims in a patent document. This follows the formalist, literalist caricature of UK law, by contrast with the essentialist, constructivist caricature of German law, which has traditionally had greater regard to identifying the idea or inventive concept behind an invention.

The last 30 years of UK case law have flipped this contradistinction on its head. In areas from inventorship to inventive step to amendment, UK courts repeatedly refer to the undefined ‘inventive concept’. Within and between different areas of patent law, the inventive concept operates as a malleable device used to emphasise different aspects of an alleged invention, thus creating considerable uncertainty in legal standards and results. Despite this, the inventive concept continues to hold appeal as a way of getting at the ‘true’ invention and around the limitations of textual representation.

The project centres on a detailed doctrinal analysis of UK jurisprudence. It addresses comprehensively the role of the inventive concept in determining validity, inventorship, and infringement in the UK, and frames this discussion within its conceptual, practical and historical context. The project’s twin aims are: (1) to consider the sustainability of the contemporary UK approach, both nationally and as a significant influence on evolving European patent law; and (2) to assess the inventive concept as a tool for representing and abstracting inventions in patent systems generally.

Personen

Doktorand/in

Julia Powles

Doktorvater/-mutter

Prof. Dr. Lionel Bently; Dr. Kathy Liddell

Forschungsschwerpunkte

Schutzgrenzen im Immaterialgüterrecht