After the abandonment of the contribution approach (see above point 1.4.1 "Assessment of the invention independent of the prior art"), the boards of appeal finally dealt with the question whether a claim to a program on a computer-readable medium avoided exclusion in T 424/03. T 424/03 extended the reasoning applied in T 258/03 to come to the conclusion that a claim to a program ("computer executable instructions" in the claim in question) on a computer-readable medium also necessarily avoids exclusion from patentability under Art. 52(2) EPC (see Catchword 2 and point 5.3 of the Reasons; see G 3/08, point 10.7 of the Reasons).
T 424/03 of 23.02.2006 concerned an application disclosing a method of providing expanded clipboard formats for transferring data between formats. The clipboard was a storage area used in the common computer commands "cut", "copy" and "paste". Claim 1 related to a method implemented in a computer system. A computer system including a memory (clipboard) was a technical means, and consequently the claimed method had technical character in accordance with established case law. Moreover, the board emphasised that a method implemented in a computer system represented a sequence of steps actually performed and achieving an effect, and not a sequence of computer-executable instructions (i.e. a computer program) which just had the potential of achieving such an effect when loaded into, and run on, a computer. The board held that the claim category of a computer-implemented method was distinguished from that of a computer program. Even though a method, in particular a method of operating a computer, might be put into practice with the help of a computer program, a claim relating to such a method did not claim a computer program in the category of a computer program. Hence, in the case a issue, claim 1 could not relate to a computer program as such.
The board also considered that the claimed method steps contributed to the technical character of the invention. These steps solved a technical problem by technical means in that functional data structures (clipboard formats) were used independently of any cognitive content (see T 1194/97, OJ 2000, 525) in order to enhance the internal operation of a computer system with a view to facilitating the exchange of data among various application programs. The claimed steps thus provided a general purpose computer with a further functionality - the computer assisted the user in transferring non-file data into files.
In the same case claim 5 was directed to a computer-readable medium having "computer-executable instructions" (i.e. a computer program) on it to cause the computer system to perform the claimed method. The board found that the subject-matter of claim 5 had technical character since it related to a computer-readable medium, i.e. a technical product involving a carrier (see also T 258/03, OJ 2004, 575). Moreover, the computer-executable instructions had the potential of achieving the above-mentioned further technical effect of enhancing the internal operation of the computer, which went beyond the elementary interaction of any hardware and software of data processing (T 1173/97, OJ 1999, 609). The computer program recorded on the medium was therefore not considered to be a computer program as such, and thus also contributed to the technical character of the claimed subject-matter. The particular program involved had therefore the potential of achieving a further technical effect when run and thus also contributed to the technical character of the claimed subject-matter.