Innovation and Rights - Developing Biomedical Devices: Design, Innovation and Protection - page 15

Chapter 3
Innovation and Rights

3.1 Introduction

Innovation could be incremental or disruptive. Obviously this second opportunity
is more strategic and we can speak about inventions. In general inventions can
only be a process and not a product: this distinction is legislative and not phenom-
enological. In fact, anyone who discovers or invents a new product but does not
know how to build it has not achieved a patentable invention.
However, there are patents concerning products and/or processes; if a new way
to produce a known product is found then you can patent the process; If the prod-
uct is new (and inventive) you can patent the product.
An invention does not often consist in the idea of the product but in its destina-
tion, in this case the inventive contribution resides in the use of the product (and it
is proper to limit the monopoly to use and not to the product itself) [ 15 ].
You have an invention of new use when the knowledge (also said as the techni-
cal teaching how) to obtain the product was already known in the state of the art,
but the particular function was not practicable (for a person skilled in the art) in an
obvious way.
There is no a statutory definition of invention.
Article no. 45(2) of the Italian Code of Industrial Property ( Codice della
Proprietà Industriale , CPI) defines how to identify non-patentable inventions,
such as the discoveries (e.g. a new substance in nature or a new property of a
known material or the mechanism of action of a drug), scientific theories (e.g. the
theory of semi-conductivity), mathematical methods or aesthetic creations.
Instead, the solution of a technical problem (e.g. the use of a substance found in
nature, or a new semiconductor) is patentable.
The exclusive right provided by the patent system has nothing to do with the
expressive phenomenology of the technical solution (product, process), but rather
relates to the technical teaching deriving therefrom (which can also be expressed
in one or more products or in a method).