3.6 Programs for computers
Computer programs are excluded from patentability under Art. 52(2)(c) and (3) if claimed as such. However, following the generally applicable criteria for Art. 52(2) and (3) (G‑II, 2), the exclusion does not apply to computer programs having a technical character.
In order to have a technical character, and thus not be excluded from patentability, a computer program must produce a "further technical effect" when run on a computer. A "further technical effect" is a technical effect going beyond the "normal" physical interactions between the program (software) and the computer (hardware) on which it is run. The normal physical effects of the execution of a program, e.g. the circulation of electrical currents in the computer, are not in themselves sufficient to confer technical character to a computer program (T 1173/97 and G 3/08).
Examples of further technical effects which confer technical character to a computer program are the control of a technical process or of the internal functioning of the computer itself or its interfaces (see G‑II, 3.6.1).
The presence of a further technical effect is assessed without reference to the prior art. It follows that the mere fact that a computer program serving a non-technical purpose requires less computing time than a prior-art program serving the same non-technical purpose does not on its own establish the presence of a further technical effect (T 1370/11). Likewise, comparing a computer program with how a human being would perform the same task is not a suitable basis for assessing if the computer program has a technical character (T 1358/09).
If a further technical effect of the computer program has already been established, the computational efficiency of an algorithm affecting the established technical effect contributes to the technical character of the invention and thus to inventive step (e.g. where the design of the algorithm is motivated by technical considerations of the internal functioning of the computer; see also G‑II, 3.3).
A computer program cannot derive a technical character from the mere fact that it has been designed such that it can be automatically performed by a computer. "Further technical considerations", typically related to the technical considerations of the internal functioning of the computer, going beyond merely finding a computer algorithm to perform a task are needed. They have to be reflected in claimed features that cause a further technical effect (G 3/08).
If a claim is directed to a computer program which does not have a technical character, it is objected to under Art. 52(2)(c) and (3). If it passes the test for having technical character, the examiner then proceeds to the questions of novelty and inventive step (see G‑VI and G‑VII, in particular G‑VII, 5.4).
"Computer-implemented invention" is an expression intended to cover claims which involve computers, computer networks or other programmable apparatus wherein at least one feature is realised by means of a computer program. Claims directed to computer-implemented inventions may take the forms described in F‑IV, 3.9 and subsections.
A computer program and a corresponding computer-implemented method are distinct from each other. The former refers to a sequence of computer-executable instructions specifying a method while the latter refers to a method being actually performed on a computer.
Claims directed to a computer-implemented method, a computer-readable storage medium or a device cannot be objected to under Art. 52(2) and (3) as any method involving the use of technical means (e.g. a computer) and any technical means itself (e.g. a computer or a computer-readable storage medium) have technical character and thus represent inventions within the meaning of Art. 52(1) (T 258/03, T 424/03, G 3/08).