Intellectual property applies to any original creation and recognizes a series of rights to its authors from the moment of creation, regardless of whether it is registered or not (and whether it is marketed or not). However, not everything that is created can be patented. Legally, the patent (a set of exclusive rights guaranteed to the inventor of a product) applies to a procedure, a manufacturing method, a machine or an apparatus or a product that is new, capable of being industrially exploited and that has required activity inventiveness.
These are some things that, at the moment, cannot be patented:
– living beings or part of them as they are found in nature
– mathematical methods
– scientific theories
– computer programs or software , which are protected by copyright
– the rules and methods of intellectual activities
– literary or artistic works, which are protected by copyright
– diagnostic, therapeutic or surgical methods
– the discoveries of natural substances
– the norms or rules of a game
But why can’t they be patented? Although a patent is recognized as a kind of ‘property’, and has many of the attributes in common with private property law, some intangible assets, such as those just described, go beyond the mere right of possession. The economist and popularizer Juan Ramón Rallo specifies in his book ‘The 10 basic principles of the liberal political order’ that, in order to satisfy the vital projects of a person, he / she cannot be limited to the effective use of a single resource. For example, a researcher can ‘make use’ of a mathematical equation described by another person to produce a scientific proof, without this use interfering with the latter’s recognition as the author of the equation.
What things can be patented?
The nature of patents works much better with industrial-type inventions. In most cases, an invention must be considered novel and useful enough to be patentable. It must also represent a significant advance in the state of the art and cannot simply be an obvious change from what is already known.
Patents are frequently granted for improvements to previously patented articles or processes if patentability requirements are met. It can be sold or assigned to others or mortgaged, or it can pass to the heirs of a deceased inventor. Because a patent gives the owner the right to exclude others from making, using, or selling the invention, he can authorize others to do any of these things through a license and receive compensation for the privilege. The rights of a patent owner also include the right to prevent others from manufacturing ‘equivalents’ of the patented technology. If any of these rights are shortened, a court may, at the request of the patent holder, compel the infringer to pay damages and refrain from infringement in the future.
