European Patent Convention (EPC)
The European Patent Convention (EPC) defines the criteria for the patentability of inventions, which have to be new, involve an inventive step and are susceptible of industrial application. Art. 52 (2) EPC also includes a list of exceptions that are excluded from patentability. Amongst those exceptions are schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers, however, only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.
The Boards of Appeal of the European Patent Office (EPO) have generated consistent case law in the recent years clarifying that as such basically means having no technical character. That is, if the invention has technical character, patent protection is also possible for the excluded subject matter, such as computer programs or business methods.
The EPO has consistently considered that technical character is an essential requirement for patentability of an invention. A technical problem has to be solved by technical features making a technical contribution. For example, technical character may be based on:
- technical effect which goes beyond the normal technical effects that are always present when a program runs on a computer
- technical considerations reflected in the claimed subject-matter
- apparently non-technical aspects that are capable of causing a change in the physical nature or technical functioning of the clearly technical aspects
- cognitive/information content of information as directed to an observer where such content affects the technical working of the method or the system in which it is used
In 1998 IBM succeeded for the first time to get a patent granted on claims for a computer program product. Ever since, a huge number of patents has been granted by the EPO for computer implemented inventions representing software innovations.
A landmark decision of the Board of Appeals with regards to the inventive step threshold for computer implemented inventions was the COMVIK/Simcard decision in 2002. The essence of this decision is that non-technical features in a patent claim cannot contribute to the inventive step of the invention. That is, although a software invention is not excluded from patentability if there is at least one technical feature present in the claim, it must be the differentiating features over the prior art having such technical character to meet the requirement of inventive step in the EPC.
This approach was confirmed very recently by the Enlarged Board of Appeals (opinion G 0003/08 from May 12, 2010), which now provides a high degree of reliability with regards to the patentability of computer implemented inventions.