Patentability of digital inventions
Last updated: 14.8.2026
To be eligible for patent protection, digital technologies must meet the standard criteria of novelty, inventive step and industrial applicability, which apply equally to all inventions under the European Patent Convention (EPC). This means that an invention must be new, involve a non-obvious solution to a technical problem and be capable of practical application. Software-based solutions, algorithms and mathematical models are patentable if they contribute to a technical effect by solving a technical problem.
How does the EPO assess digital inventions?
The assessment of computer-implemented inventions, including those in the areas of AI and QC, is carried out in two steps:
- Determine whether the claim has a technical character as a whole.
A technical character in a claim means it can be considered for patent protection, even if it deals with mathematical methods (e.g. algorithms) or computer programs, which are otherwise excluded. A claim has a technical character if it involves any technical means, for example a computer. - Assess novelty and inventive step based on the problem-solution approach.
The focus here is on what the feature does in the context of the claim, not on what the feature does in isolation. These clear examination principles are set out in the Guidelines for Examination in the EPO. Their consistent application in the EPO's examination practice helps safeguard innovation in Europe.
Can AI-generated material affect the assessment of patentability?
The assessment of patentability is always carried out taking the state of the art into account.
The concept of state of the art is interpreted in the broadest possible sense. Prior art is not subject to restrictions regarding its origin, geographical location, type or the size of the public to which it was disclosed. Consequently, the EPC does not limit prior art to material generated by humans or disclosed in a specific manner. What matters is the technical teaching made available to the public.
AI-generated documents may constitute state of the art if they were made publicly available before the relevant date and are enabling, such that the person skilled in the art can put the disclosed technical teaching into practice.