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Case Law of the Boards of Appeal

 
 
a)
Computer program recorded on the medium 

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.