Science v. Technology – Subject matter distinction within IPR system

In order to fully grasp the various aspects of Innovation and IPR, it is pertinent to understand the subject matter which is governed by and excluded from the ambit of the law. As the distinction in the nature of the subject matter becomes clear, so does the rationale for its inclusion and/or exclusion.

In this post, I wish to focus on the subject matter governed by Patent Law, globally under the TRIPS Agreement.

As an IP professional I’ve often been asked if mathematical equations, scientific principles, observations, discoveries and the likes can be patented. The answer; a resounding no. Most interlocutors seem to struggle with that information until the rationale of IP Rights, in this case Patent right, is brought to the fore in the dialogue. Therefore, I think it is fruitful to discuss the specifics of this rationale in reasonable detail.

The subject matter of Patent Law is Technology, not Science.

Patents are administered globally under the TRIPS (an international treaty which provides for the entire mechanism) and Article 27 of the agreement states its subject matter. The relevant portions are reproduced as follows

“ . . patents shall be available for any inventions, whether products or processes, in all fields of technology , provided that they are new, involve an inventive step and are capable of industrial application”

The key here is the use of the word “technology” which Oxford Dictionary defines as

“ The application of scientific knowledge for practical purposes, especially in industry

Notably, therefore, Patent law’s subject matter is “the application of scientific knowledge for practical purposes” rather than “scientific knowledge” itself.

The Rationale
Innovation – Dissemination Cycle

Intellectual Property Rights law developed as a legal tool for encouraging two important social phenomenon, ‘innovation’ and ‘knowledge dissemination’.

Fundamental scientific research is essential for the development of our scientific understanding of the universe. Just as important is the dissemination of scientific knowledge which forms the basis of further research, and the process goes on in a cyclic manner. One feeding on the other.

Consequences of Non-dissemination of Scientific Knowledge

Given this interdependence, innovation can not accelerate without prompt and widespread dissemination of scientific knowledge. A balance must be struck and forces which disturb this balance must be countered to avoid the ensuing grave consequences.

Stagnation in flow of knowledge affects the society in primarily two ways.

  1. It disrupts the ‘Innovation – Dissemination cycle’ thereby inhibiting prospective development and research and slowing the whole process down.
  2. It creates inefficiencies in the way in which the society functions. A wasteful allocation of social resources in trying to reinvent the wheel over and over again stifles scientific, technological and economic progress.
Knowledge is Divine

Given the immense importance of knowledge and it’s free dissemination, it is treated as divine, to be kept beyond the reach of monopolistic forces, easily accessible to all. With this underlying rationale, no claim of ownership over it is entertained by any law in any jurisdiction.

Knowledge is the foundation upon which towers of technology are built. The practical application of the knowledge to solve specific problems is what is protected by the Patent law.  Scientific knowledge including discoveries, mathematical equations and the likes are excluded from the ambit of IPR protection are is treated as the common heritage of mankind.

Keeping the building blocks free is vital if we are to encourage people to undertake problem solving and out do each other at it, an exercise from which the society as a whole gains immensely.

An interesting example of a misunderstanding of the subject matter governed by Patent law has surfaced on the internet.

ARS Technica, an American publication devoted to technology that caters to technologists and IT professionals has reported a Patent dispute brewing over a mathematical formula called the “Super-formula”, derived by Prof. Johan Gielis of University of Antwerp, Belgium in the early 2000s, for its ability to create “naturalistic shapes with gentle curves”. This equation has found application in Game development where the in-game landscapes are required to be populated.

It is widely reported that the equation was patented while in fact a technical application of the equation is patented.  Here’s the link to the patent document. The independent claim claims an application of the equation in CGI.