Software patents under the European Patent Convention: Meaning (information, definition, explanation, facts)

Even though the European Patent Convention and its Article 52 excludes the patentability of programs for computers as such, that does not mean that all inventions including some software are de jure not patentable. Software patents have been granted by the European Patent Office (EPO) since the '80s.

Article 52 EPC

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. (emphasis added)

Many believe that, 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", but that is not true since many software patents were granted in the '80s by the EPO.

Like the other parts of the paragraph 2, computer programs are open to patenting to the extent that they provide a technical contribution to the prior art. In the case of computer programs and according to the case law of the Boards of Appeal, a technical contribution means a further technical effect that goes beyond the normal physical interaction between the program and the computer. Though many argue that there is an inconsistency on how the EPO now applies Art. 52, the practice of the EPO is fairly consistent regarding the treatment of the different elements of Art. 52(2). A mathematical method is not patentable, but an electrical filter designed according this method would not be excluded from patentability by Art. 52(2) and (3).

A technical effect provided by a computer program 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.

But art. 52(2) and (3) are only the first step towards patentability. Computer programs can also be refused and are often refused on the ground of lack of inventive step, which can be relatively easier to assess in certain cases.

• Keith Beresford: Patenting Software Under the European Patent Convention, Sweet & Maxwell, 2000. ISBN 0752006339.