Article 57 EPC: Industrial application

Text of Article 57 EPC

In plain English

For most inventions this requirement is met without discussion. “Industry” is read broadly, as any physical activity of technical character, and does not require a machine or a manufactured article (Guidelines G-III, 1). Article 57 excludes very little that Article 52(2) has not already excluded.

One class that fails is a device said to work against well-established physical laws, such as a perpetual motion machine. If the claim states the impossible function, the objection is under Article 57; if it only claims the structure, the objection is lack of sufficiency under Article 83.

The real battleground is biotechnology. Rule 29(3) requires the industrial application of a gene sequence or partial sequence to be disclosed in the application, and Rule 42(1)(f) requires the description to say how the invention can be used in industry where that is not obvious. A sequence or protein with a function that is merely guessed at will fail.

The Boards have set the standard. There must be a profitable use for the substance; a vague and speculative indication of possible objectives to be explored by further research is not enough (T 870/04). The invention needs a sound and concrete technical basis from which the skilled person can recognise that it could lead to practical exploitation in industry (T 898/05).

Article 57 is also not a back door around other exclusions. A method of stock control can be applied in a factory, but it is still excluded by Article 52(2)(c) (Guidelines G-III, 3). Methods of medical treatment, which the EPC of 1973 treated as lacking industrial application, are now excluded under Article 53(c) instead.

Key decisions

• T 870/04 (BDP1 Phosphatase/MAX-PLANCK) : Being able to produce a substance is not enough without a profitable use; the reader cannot be left to find a practical application by further research.
• T 898/05 (Hematopoietic receptor/ZYMOGENETICS) : The invention must have a sound and concrete technical basis showing a practical, concrete benefit that is immediately derivable from the description, if not already obvious.

Common objections

Function not credibly disclosed

Typical for receptors, proteins and sequences identified by homology. The answer has to come from the application as filed: experimental data or a credible, specific use. Later evidence can confirm what the application made credible but cannot supply a use it never disclosed.

Contrary to physical laws

Raised under Article 57 or Article 83 depending on whether the claim recites the impossible function. Arguments rarely succeed without a credible technical explanation.

Drafting and prosecution tips

• For biological material, state the function, the assay that shows it and at least one concrete application in the description as filed.
• Add a sentence on industrial use whenever it is not self-evident, as Rule 42(1)(f) asks.
• Do not rely on “may be useful for research into…” language. It is exactly what T 870/04 rejected.