“The European Patent Office (EPO) has just announced in Venice the winners of the prestigious 2017 European Inventor Award a tribute to the inventors launched in 2006, which recognise their contribution to social, economical and technological progress.
Strange though it may seem, an event celebrating patents is awaited as the ‘Oscars’ of the film industry. Actually, a connection between artists and inventors does exist. As happens with the formers, scientists need to be inspired in order to create something. In the last years, it seems that the green economy has been implicitly recommending new sources for inspiration, all deriving from nature, which scientists are willing to apply to their inventions, also in the field of robotics.
When it comes to robots, the first image which comes to mind is that of humanoid robots. There are many reasons for this, but I reckon that the main one is because in the past, scientists wanted to create machines able to perform human tasks. Therefore, it seems quite logical for them to give individuals features to this artificial objects.
Apart from all the ethical questions related to the convenience of creating humanoid robots, there were two important disadvantages: the huge amount of energy needed for them to function as well as the relative implication this may have in terms of pollution.
For this reasons, scientists are now looking at mother nature in order to create new robots and, in particular, at plants, which are efficiently adapted to changing environmental conditions by using non-muscular movements. A clear example of this is given by the movement of pine cones, which are simply due to changes in humidity.
Taking natural materials as models, allows the development of new materials with higher structural properties, applicable in several fields (including consumer products, automotive, and architecture).
If scientists should find the formula to reproduce the same natural plants’ structure in robotics, we can imagine roofs that open up independently when it starts raining or insulated panels that cover our homes when it becomes too hot.
There are many amazing aspects related to the use of bio-materials: i. they can perform various functionalities, although being composed by a limited number of basic elements such as cellulose, lignin, and pectin; ii. they are regulated by passive movements, mainly driven by changes in environmental conditions. This means that these systems do not require human control or energy supply once their growth is completed; iii. they have a low impact on the environment.
With all the above in mind, it would be useful to understand the patent implication that all of this may have. In particular, to what extent it is possible to patent robots composed of bio-materials and if it is possible to consider these such as biotechnological inventions.
According to Rule 52 of the European Patent Convention (EPC), three elements are required in order to patent an invention which are i. novelty, ii. inventive step and iii. industrial application.
However, Rule 53 CPE includes some exception to patentability. In particular, it states that ‘European patents shall not be granted in respect of (…) b) plant or animal varieties or essentially biological processes for the production of plants or animals (…)’.
Does this rule apply to the creation of robots of the next generation? Since scientists are trying to use bio-materials, it appears necessary to examine if these inventions can be considered as biotechnological.
To this regard, Rule 26 EPC provide us with the following definitions: ‘(2) Biotechnological inventions are inventions relating to the industrial use of biologically active material derived from living organisms, including the use of the organisms themselves. On the other side, ‘(3) Biotechnological material is any material containing genetic information and capable of reproducing itself or being reproduced in a biological system.’
With such explanations in mind, we can conclude that, in principle, biotechnological inventions are patentable under the EPC and, depending of the materials scientists are going to use, it is possible to put the label of biotechnological to such inventions.
Furthermore, Rule 27 clarifies when biotechnological inventions are patentable. Let’s analyse its provisions in turn.
(a) Biotechnological inventions shall also be patentable if they concern (…) biological material which is isolated from its natural environment or produced by means of a technical process even if it previously occurred in nature.
Basically, a biological material may be considered patentable if it already occurs in nature but with the following clarifications: a mere discovery is not patentable, because it lacks of technical effects and it is therefore not an invention within the meaning of Art. 52(1). However, in case one finds that substance to have any practical use, then this constitutes an invention which may be patentable.
(b) Biotechnological inventions shall also be patentable if they concern (…) plants or animals if the technical feasibility of the invention is not confined to a particular plant or animal variety.
All the process for the production of plants or animals, which are essentially biological, are excluded from patentability.
Nevertheless, if a process of sexual crossing and selection includes within it any additional step of a technical nature, which modifies a trait in the genome of the plant produced, then such a process is patentable under Art. 53(b).
The same principle basically applies with regard to the exclusion from patentability of essentially biological processes for the production of animals.
(c) Biotechnological inventions shall also be patentable if they concern (…) a microbiological or other technical process, or a product obtained by means of such a process other than a plant or animal variety.
Microbiological process means any process involving or performed upon or resulting in microbiological material. In this case, might applies mutatis mutandi what already said for Rule 27 let (a).
In light of the above analysis, it is possible to conclude that biotechnological inventions, which should be at the basis of the next generation robots, are patentable, with the commented exceptions.
The test for patentability should be made on a case-by-case basis, depending of what scientists will effectively use to realize new robots. Should they only be inspired by nature but not use bio-materials for their inventions, in this case the latters will be subjected to the rules set for mechanical inventions.
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