Selection invention
A selection invention is a patentable invention that falls under a generic claim of an earlier patent, but is not considered to be disclosed according to the relevant legal situation - in particular not through the earlier patent document. The question of the selection invention is thus an aspect of the novelty check of the later patent application in which the selection is made. The subject of the selection invention can be expressly disclosed individual elements, subsets from a larger set or a parameter subrange from a larger parameter range. Although it can in principle occur in any technology, the selection invention is particularly important for active ingredient patents in agrochemistry and pharmacy. The term “selection patent” is used for a patented selection invention.
Two cases of selection invention are particularly common:
- the selection of a single chemical compound or a small group of closely related chemical compounds from the entirety of all compounds expressed by a generic chemical formula
- the selection of a narrow temperature, pressure or substance amount range from a larger range.
Legal basis
The concept of selection invention can only be found in some of the national and supranational patent systems, and there it still has very different characteristics.
The treatment of the selection invention, for example, takes up a lot of space in the system of the European Patent Convention (EPC). The Examination Guidelines for the EPC provide a detailed description with application cases.
Laws and Conventions
- European Patent Convention , accessed January 31, 2016.
- Guidelines for Examination in the European Patent Office, November 2015 edition , accessed on February 19, 2016.
- Case Law of the Boards of Appeal of the EPO , accessed February 19, 2016.
