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Patentability of methods of doing business

Keyword: business method - computer program

The articles and rules of the European Patent Convention (EPC) relevant to the patentability of business methods and computer programs may be summarized as follows:

According to Article 52(1) EPC , a European patent shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step. Further, in accordance with Rules 27 and 29 EPC, in order to be patentable, an invention must be of a technical character to the extent that it must relate to a technical field, must be concerned with a technical problem and must have technical features in terms of which the matter for which protection is sought can be defined in the patent claim.

The EPC does not give a definition of the term "invention".

It does, however, include a list of subject-matter and activities which are deemed not to be inventions. According to Article 52(2) EPC, methods for doing business, mathematical methods, presentations of information and programs for computers shall not be regarded as inventions. However, Article 52(3) EPC stipulates that this provision shall exclude patentability of the subject-matter or activities referred to only to the extent to which a European patent application relates to such subject-matter or activities as such.

It follows that, although methods for doing business, programs for computers, etc., are as such explicitly excluded from patentability, a product or a method which is of a technical character may be patentable, even if the claimed subject-matter defines or at least involves a business method, a computer program, etc.

In the specific case of a claim defining a computer program, irrespective of whether or not it defines a business method, the following is noted:

In a recent decision of a Board of Appeal of the EPO (T 1173/97), the Board noted that a computer program is considered to have a technical character, if it causes, when run on a computer, a technical effect which may be known in the art but which goes beyond the "normal" physical interactions between program and computer. Such effect may, for example, be found in the control of an industrial process or in the internal functioning of the computer itself.

The EPO adjusted its practice in the light of this decision. The Guidelines for Examination in the EPO will be adapted accordingly in due course.

Summarizing the above, methods for doing business and computer programs are not always excluded from patentability.