Patentability of Computer Programs in Europe

Patentability of Computer Programs in Europe

Robert Dewald is a JD candidate at Osgoode Hall Law School

On May 12, 2010 the Enlarged Board of Appeal of the European Patent Office (EPO) responded to several questions posed by the President of the EPO, Ms Alison Brimelow, regarding the patentability of computer programs in Europe.  The resounding answer to these questions, provided by the Enlarged Board of Appeal, was that they are inadmissible and that the status quo should prevail. 

In constructing its opinion, the Enlarged Board of Appeal cited that the purpose of the European Patent Convention (EPC) is to establish uniformity of law within the EU patent system.  The only way the Enlarged Board of Appeal can partake in the development of law is in instances of conflict between existing precedents, whereby the board may break with existing practise and point the development of law in a new direction.  The President’s questions posed to the Enlarged Board of Appeal did not address conflicting decisions in the patent system, and were thus inadmissible.

While the Enlarged Board of Appeal did not deviate from current case precedents in Europe, it did clarify and provide guidance regarding the interpretation of leading cases in the European patent system.   Under the EPC, computer programs are listed among the categories that are not patentable subject matter.  However, while patents explicitly claimed as computer programs are not patentable, programs that are part of a computer, network or other programmable apparatus’s scheme are not excluded and may be patentable as a “computer –implemented invention”

The Enlarged Board of Appeal clarified that according to the T424/03 (Microsoft) decision a program on a computer-readable medium is not excluded from patentability.  So long as either the computer-readable medium or the program it contains has a technical effect, it will not be excluded from patentability.  The final question, before granting a patent then, is to consider whether the computer program or computer-readable storage medium which contains it, has an inventive step.    

While a computer program on a computer-readable medium is not excluded from patentability, the Enlarged Board of Appeal did state that simple patent claims for a program on a computer-readable storage medium or method of operating a computer will still fail to be patentable for lack of an inventive step.   To be patented, the programmer must construct a program/procedure which a machine cannot only carry out, but must make a non-obvious technical contribution, or solve a technical problem.

This decision by the Enlarged Board of Appeal likely disappointed many who hoped for a change to exclude the patentability of all computer programs in Europe.  Many consider software patents to be broad and trivial by nature, and that these patents harm the economy by stifling innovation and growth.  Because the work of a programmer is already protected by copyright, detractors of the software patent system argue that patents in this area are often used to restrict the interests of software producers in favour of patent producers.  Alternatively, proponents of software patentability cite that these patents will promote economic growth by encouraging investment in research and development, and increase the valuation of small companies who can protect their market-share using patents to challenge larger companies and thus increase competition. 

Europe’s software patent policy currently has settled on a restrained approach to granting software patents, where computer programs must have a technical characteristic as part of a larger computer or network scheme.   While proponents and detractors of software patents had hoped the Enlarged Board of Appeal would reform Europe’s patent system, clinging to the status quo has done little to satisfy European software developers’ appetite for change.   All eyes are now on the US Supreme Court and their upcoming decision in Bilski v. Kappos to provide guidance for the development of software patent law in North America, Europe and around the world.