Inventions involving Programsprograms for computers are a can be protected in different formforms of a "computer-implemented invention", an expression intended to cover claims which involve computers, computer networks or other programmable apparatus whereby prima facie one or more of the features of the claimed invention are realised by means of a program or programs. Such claims directed at computer implemented inventions may e.g. take the form of a method of operating said apparatus, the apparatus set up to execute the method, a readable medium carrying a program (see T 424/03) or, following T 1173/97, the computer program itself as well as the physical media carrying the program (see T 424/03), i.e. computer program product claims, such as "data carrier", "storage medium", "computer readable medium" or "signal".
The category of a claim directed to a computer-implemented method is distinguished from that of a claim directed to a computer program corresponding to that method (T 424/03 and G 3/08). Such claims therefore have to be examined separately.
The examiner should disregard the claim category and concentrate on its content in order to determine whether the claimed subject-matter, considered as a whole, has a technical character.
Moreover, insofar as the scheme for examination is concerned, no distinctions are made on the basis of the overall purpose of the invention, i.e. whether it is intended to fill a business niche, to provide some new entertainment, etc.
Technical character should be assessed without regard to the prior art (see T 1173/97, confirmed by G 3/08). Features of the computer program itself (see T 1173/97) as well as the presence of a device defined in the claim (see T 424/03 and T 258/03) may potentially lend technical character to the claimed subject-matter as explained below. In particular in embedded systems, a data processing operation implemented by means of a computer program can equally be implemented by means of special circuits (e.g. by field-programmable gate arrays).
The basic patentability considerations in respect of claims for computer programs are in principle the same as for other subject-matter. While "programs for computers" are included among the items listed in Art. 52(2), if the claimed subject-matter has a technical character it is not excluded from patentability by the provisions of Art. 52(2) and Art. 52(3).
Moreover, a data processing operation controlled by a computer program can equally, in theory, be implemented by means of special circuits, and the execution of a program always involves physical effects, e.g. electrical currents. According to T 1173/97, such normal physical effects are not in themselves sufficient to lend a computer program technical character (for the procedure at the search stage, see B-VIII, 2.2). However,A computer program claimed by itself is not excluded from patentability if a the computer program it is capable of bringing about, when running on a computer or loaded into a computer, a further technical effect going beyond thesethe normal "normal" physical effects interactions between the program (software) and the computer (hardware) on which it is run (T 1173/97 and G 3/08), it is not excluded from patentability. The normal physical effects of the execution of a program, e.g. electrical currents, are not in themselves sufficient to lend a computer program technical character, and a further technical effect is needed. ThisThe further technical effect may be known in the prior art.
Likewise, although it may be said that all computer programming involves technical considerations since it is concerned with defining a method which can be carried out by a machine, that in itself is not enough to demonstrate that the program which results from the programming has technical character; the programmer must have had technical considerations beyond "merely" finding a computer algorithm to carry out some procedure (G 3/08).
A further technical effect which lends technical character to a computer program may be found e.g. in the control of an industrial process or in processing data which represent physical entities or in the internal functioning of the computer itself or its interfaces under the influence of the program and could, for example, affect the efficiency or security of a process, the management of computer resources required or the rate of data transfer in a communication link. The processing of data which represents physical entities (such as an image stored as an electric signal), resulting in a change in those entities (T 208/84), also denotes a further technical effect.
As a consequence, a computer program may be considered as an invention within the meaning of Art. 52(1) if the program has the potential to bring about, when running on a computer, a further technical effect which goes beyond the normal physical interactions between the program and the computer.
A patent may be granted on such a one of the different forms of a computer program product claim if all the requirements of the EPC are met; see in particular Art. 84, Art. 83, Art. 54 and Art. 56, and G-III, 3 below. Such claims should not contain program listings (see F-II, 4.12), but should define all the features which assure patentability of the process which the program is intended to carry out when it is run (see F-IV, 4.5.2, last sentence). Short excerpts from programs might be accepted in the description (see F-II, 4.12).
Moreover, following T 769/92, the requirement for technical character may be satisfied if technical considerations are required to carry out the invention. Such technical considerations must be reflected in the claimed subject-matter.
Whether a computer program can contribute to the technical character of the claimed subject-matter is frequently an issue separate and distinct from the technical character of the hardware components which may be defined in order to execute the computer program. When a computer program produces a further technical effect (T 1173/97), it is by itself considered technical and not excluded. In contrast, Anyany claimed subject-matter defining or using technical means is an invention within the meaning of Art. 52(1) (see T 424/03 and T 258/03, and confirmed in G 3/08). Therefore the mere inclusion of This applies even if the technical means are commonly known; for example, the inclusion of a computer, a computer network, a readable medium carrying a program, etc. in a claim lends technical character to the claimed subject-matter.
If claimed subject-matter relating to a computer program does not have a prima facie technical character, it should be rejected under Art. 52(2) and Art. 52(3). If the subject-matter passes this prima facie test for technicality, the examiner should then proceed to the questions of novelty and inventive step (see G-IVG-VI and G-VII).