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Legal transplants in patent law: why "utility" is the new "industrial applicability"

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This paper focuses on the transplantation of the “utility standard” from the U.S. legal system into the “industrial application” criterion of patentability as seen in EPO and UKIPO case law. The “specific, substantial, and credible” standard (SSCS) of utility lacks explicit statutory basis, is largely driven by a process of mimesis fol­lowing collaboration between patent offices, and carries the potential to generate col­lateral damage to a number of neighboring legal standards in European patent law. The SSCS potentially undermines the “technical” requirement in Europe and highlights a growing conflation between industrial applicability and disclosure requirements. Addi­tionally the SSCS may increase research tool patentability in Europe, a development that exposes potential inadequacies in the institutional arrangements of the receiving legal system. Institutional dynamics incrementally entrench the legal transplant, ac­companied by little or no discussion on its viability and legitimacy. The significant normative impact of the process of transplantation of the SSCS places the patent office at the center of legal and policy change—an entity that is arguably not fit for this pur­pose.

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