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Software patents under the European Patent Convention

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1 Software patents under the European Patent Convention

Software patents under the European Patent Convention

(based on an article at Ius Mentis and reproduced with permission)

The European Patent Convention excludes "computer programs as such" from patentability, but does not define what this means. Recent case law from the European Patent Office has provided a definition, which allows almost every type of program to be patentable. It is thus a mistake to think that software patents cannot exist in Europe.

To be patentable, an invention must have technical character. This means that the invention must relate to a technical field and solve a technical problem. A computer program has a technical character if it causes a technical effect when run on a computer. This effect must be more than the "normal" physical interaction between program and computer.

In practice, this requirement is rarely a problem for inventions that use software for their realization. So it should not come as a surprise that there are many European patents covering software-related inventions ("software patents").

Software in the European Patent Convention

Article 52 of the European Patent Convention (EPC) defines what inventions are and when they are patentable under the EPC. Article 52(1) states:

European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.

There is no definition of what an invention is or is not. However, article 52(2) provides a list of things that "in particular" shall not be regarded as inventions (suggesting there might also be other things that are not inventions):

  1. discoveries, scientific theories and mathematical methods;
  2. aesthetic creations;
  3. schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;
  4. presentations of information.

The scope of this list is reduced by article 52(3) which states that the provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to therein only to the extent that an application or a patent relates to such subject-matter or activities as such. Unfortunately, article 52(3) does not explain what "as such" means, presumably leaving it up to the case law to provide a workable definition.

Current interpretation of article 52 EPC

From the fact that the above list contains only abstract things, and that the items on the list have in common that they are non-technical, the Board of Appeals of the European Patent Office has concluded that to be patentable, an invention must be technical in some way.

A computer program will, when run on a computer, cause that computer to do something like display items on screen, store a particular pattern in a memory, activate a peripheral device, or at the very least, cause certain electrical currents to run over particular connections. Such activities can be seen as technical effects of running a computer program, and so all programs would be technical in the sense that they can cause a technical effect merely by being executed on a computer.

However, this would mean that there are no programs for computers excluded by articles 52(2) and (3). So there must be some kind of technical effect that goes beyond the effects produced by all programs which makes the program patentable. In the words of the Board of Appeals (T 1173/97 and T 935/ 97), the technical effect must go beyond the "normal" physical interactions between program and computer. If such an effect can be found, the program is not excluded and hence a patentable invention.

A technical effect can be, for example, a reduced memory access time, a better control of a robotic arm or an improved reception and/or decoding of a radio signal. It doesn't have to be external to the computer on which the program is run; reduced hard disk access time or an enhanced user interface could also be a technical effect.

The recent EU software patent directive introduced a natural forces definition.