Patentability of methods of human enhancement

This article explores how to apply patentability rules to human enhancement, particularly focusing on Article 53(c) of the European Patent Convention (EPC). The global size and value of the cosmetic and wellness market and industry allow for the prediction of considerable market potential for human enhancement. Patents will be instrumental for companies to protect investment in innovation and tap into this potentially valuable market. The European patent system contains, in Article 53(c) EPC, an exception from patentability for methods for treatment and diagnostic methods. Such rule was created, and subsequently developed through European Patent Office (EPO) case law, by reference to the dichotomy between therapeutic and cosmetic methods. Subsuming enhancement methods under this patentability rule may be challenging. Ultimately, patentability of human enhancement will depend on the concept of health, its future evolution and the corresponding public policy choices. This article seeks to provide prospective patentees with guidance and awareness concerning the patentability of methods for human enhancement.