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Software patents under the European Patent Convention

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This is an old revision of this page, as edited by 80.132.127.3 (talk) at 06:14, 15 March 2004 (more on "as such"...). The present address (URL) is a permanent link to this revision, which may differ significantly from the current revision.

Software patents under the European Patent Convention

The European Patent Convention, Article 52, paragraph 2 excludes

  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.

from patentability. paragraph 3 then says:

(3) The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.

For decades this "as such" has been interpreted as meaning "as long as an idea in the program(and anything in paragraph 2) is claimed".

If the the "as such" is interpreted as not limiting patents on computer programs, then alos the other parts of paragraph 2 would be open to patenting, but they are not, so there in a big inconsistency on how the EPO now applies the binding convention.

Recenty the European Patent Office(EPO) has re-interpreted it differenty, the page on iusmentis.com below has a good explanation. This new interpretation allows the EPO to patent almost every type of program whithout obviously granting them against the letter and the sprit of the law which has put it in force. The EPO has granted more than 30.000 patents Software patents since.

The new guidelines which interpret Article 52 now differenty read like this:

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.

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.

So it should not come as a surprise that there are many European patents covering software-related inventions ("software patents").

The general requirements for european patents are:

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

industrial application means "to make money", and "inventitive step" is a very subjective criteria which tends to be very low(since 1-click is patentened by the EPO as well).

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