An aesthetic creation relates by definition to an article (e.g. a painting or sculpture) having aspects which are other than technical and the appreciation of which is essentially subjective. If, however, the article happens also to have technical features, it might be patentable, a tyre tread being an example of this.
Subject-matter relating to aesthetic creations will usually have both technical aspects, e.g. a 'substrate' such as a canvas or a cloth, and aesthetic aspects, the appreciation of which is essentially subjective, e.g. the form of the image on the canvas or the pattern on the cloth. If technical aspects are present in such an aesthetic creation, it is not an aesthetic creation ‘as such’ and it is not excluded from patentability.
A feature which might not reveal a technical aspect when taken by itself could have a technical character if it brings about a technical effect. For example, the pattern of a tyre tread may actually be a further technical feature of the tyre if, for example, it provides improved channelling of water. On the contrary, this would not be the case when a particular colour of the sidewall of the tyre serves only an aesthetic purpose.
The aesthetic effect itself is not patentable, neither in a product nor in a process claim.
For example, a book claimed features relating solely in terms of to the aesthetic or artistic effect of its the information content of a book, of or to its layout or of its letterfont, would not be patentable considered as technical features. , and neitherNeither would a painting defined by features such as the aesthetic effect of its the subject of a painting or by the arrangement of its colours, or by theits artistic (e.g. Impressionist) style be technical. Nevertheless, if an aesthetic effect is obtained by a technical structure or other technical means, although the aesthetic effect itself is not patentable of a technical character, the means of obtaining it may be. For example, a fabric may be provided with an attractive appearance by means of a layered structure not previously used for this purpose, in which case a fabric incorporating such structure might be patentable.
Similarly, a book defined by a technical feature of the binding or pasting of the back may be patentable is not excluded from patentability under Art. 52(2) and Art. 52(3), even though it has an aesthetic effect too., similarly also A painting defined by the kind of cloth, or by the dyes or binders used, is likewise not excluded.
Also aA technical process, even if it is used to of producing produce an aesthetic creation may comprise a technical innovation and thus be patentable. For example, a diamond may have a particularly beautiful shape (not of itself patentable) produced by a new technical process. In this case, the process may be patentable. (such as a cut diamond), is nevertheless a technical process which is not excluded from patentability. Similarly, a new printing technique for a book resulting in a particular layout with aesthetic effect may well be patentable is not excluded, together with and nor is the book as a product of that process. Again, a substance or composition defined by technical features serving to produce a special effect with regard to scent or flavour, e.g. to maintain a scent or flavour for a prolonged period or to accentuate it, may well be patentable is not excluded.