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Guidelines for Examination

 
 

3.4 Aesthetic creations

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, features relating solely to the aesthetic or artistic effect of the information content of a book, or to its layout or letterfont, would not be considered as technical features. Neither would features such as the aesthetic effect of the subject of a painting or the arrangement of its colours or its 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 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 is not excluded from patentability under Art. 52(2) and (3), even though it has an aesthetic effect too. A painting defined by the kind of cloth, or by the dyes or binders used, is likewise not excluded.

A technical process, even if it is used to produce an aesthetic creation (such as a cut diamond), is nevertheless a technical process which is not excluded from patentability. Similarly, a printing technique for a book resulting in a particular layout with aesthetic effect is not excluded, 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, is not excluded.

References

Art. 52(2)(b)