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Case Law of the Boards of Appeal

Methods performed by a computer 

In T 258/03 (OJ 2004, 575) the board held that a method involving technical means is an invention within the meaning of Art. 52(1) EPC 1973 (as distinguished from decision T 931/95, OJ 2001, 441). Thus with regard to methods, decision T 931/95 (OJ 2001, 441) was explicitly overturned by T 258/03. If the claimed method requires the use of a computer, it has technical character and constituted an invention within the meaning of Art. 52(1) EPC (see T 1351/04, T 258/03, T 313/10). Since a claim directed to a method of operating a computer involved a computer it could not be excluded from patentability by Art. 52(2) EPC (G 3/08, OJ 2011, 10).

In T 313/10 the examining division had argued, using their own criteria, that a method performed by a computer was excluded. This was contrary to the established jurisprudence as set out in the Guidelines. The first issue in this case was whether the claimed method, performed by a computer, of matching items in a table is excluded from patentability (Art. 52(2) and (3) EPC). The board stated that it is the established case law of the boards of appeal that claimed subject-matter specifying at least one feature not falling within the ambit of Art. 52(2) EPC is not excluded from patentability by the provisions of Art. 52(2) and (3) EPC (see G 3/08, OJ 2011, 10, T 258/03, and T 424/03).

The board noted that the technical character might come from within, namely from the effect on the computer. This was the case, for example in T 424/03 where the technical effect came from "functional data structures (clipboard formats) used independently of any cognitive content...in order to enhance the internal operation of a computer system". Such "functional data structures" were also considered to be present in the file search method that was the subject of T 1351/04.