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Patentability of programs for computers
24 October 2008
President of the EPO asks for clarification of exclusion
Considering that diverging decisions of the EPO's boards of appeal have created uncertainty, EPO President Alison Brimelow has referred a number of questions to the Enlarged Board of Appeal of the EPO (EBoA) in relation to the patentability of programs for computers under the European Patent Convention (EPC). The answers to the questions are believed to be necessary to enable the further harmonious development of case law in this field and the EBoA is in charge of ensuring uniform application of the EPC.
The referral does not call into question the applicable provisions of the EPC: Article 52(2) and (3) states that programs for computers as such are not to be regarded as inventions, in other words they are excluded from patentability. However, guidance is sought on how some of the finer aspects of this exclusion are to be applied.
The questions seek clarification not only on when a claim as a whole falls under the exclusion, but also on the circumstances under which individual features relating to programs for computers can contribute to the technical character of a claim (in which case they are relevant for assessing novelty and inventive step). It is hoped that the answers to these questions will lead to greater clarity concerning the limits of patentability, thereby facilitating application of the EPC by patent examiners and enabling both applicants and the wider public to understand the law regarding the patentability of programs for computers.
Specifically, the questions address four different aspects of patentability in this field. The first question relates to the relevance of the category of the claim. The other three questions ask where the line should be drawn between those aspects excluded from patentability and those contributing to the technical character of the claimed subject-matter: the second question concerns the claim as a whole; the third, individual features of the claim; and the fourth - relevant for defining the skills of the (technically) skilled person - concerns the activity (the programming) underlying the resulting product (the computer program).
Further information
- About us: Boards of appeal
- EPC Article 112: Decision or opinion of the Enlarged Board of Appeal
- EPC Article 22: Enlarged Board of Appeal
- EPC Article 52: Patentable inventions
- EPC Article 115: Observations by third parties
- Appeals: Pending referrals
- Topics: Patents for software?