Software and business methods are subject to the European Patent Convention (EPÜ) “as such” excluded from patent protection. However, computer-implemented inventions can definitely be patented. The following overview summarizes the examination practice of the European Patent Office (EPA) together, how they hold the office in one Article in the Official Journal has presented.

What is a computer implemented invention?

The EPO considers this to be an invention, to the execution of a computer, a computer network or other programmable apparatus and having at least one characteristic, which is implemented in whole or in part by a computer program.

First hurdle: technical character

ART. 52 Abs. 2 and 3 EPC uses, among other things, mathematical methods, Plans for business activities, Programs for data processing systems and the reproduction of information are protected “as such” by patent protection. The EPO therefore requires technical character. This hurdle is low: As soon as a claim involves technical means - such as a computer -, is an invention within the meaning of Art. 52 Abs. 1 EPÜ vor (T 258/03). Purely abstract concepts with no technical relevance remain excluded.

Decisive: Inventive step

The actual test takes place in the inventive step (ART. 56 EPÜ) instead. The EPO distinguishes between characteristics, die zum technischen Charakter beitragen, and purely non-technical features. Non-technical aspects, for example, a business objective, only then count, if they influence the technical functionality or reflect technical considerations (T 641/00).

• The closest prior art comes from a technical field.
• The objective technical task is formulated based only on the technical differences.
• Non-technical specifications (from. B. a business model) may be included in the task as a mandatory framework condition, without anticipating the solution.
• The subject matter differs from the prior art only through non-technical features, lacks inventive step.

According to the EPO, this is a difference to the practice of the US Patent Office at the time, in which the non-obviousness could also be fulfilled without any technical contribution.

Stand

This article reflects the practice of the EPO at the time of its publication (2010) again. Examination guidelines and case law of the Boards of Appeal have evolved since then; The applicable guidelines and decisions should be used for a current assessment.

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General overview; no legal advice in individual cases.