“Software” Patents in Europe

Well, to be precise, computer-implemented inventions under the European Patent Convention.

The Enlarged Board of Appeal has just issued a decision in referral G03/08 (for background see here). The Enlarged Board have decided that the referral is inadmissible. The accompanying opinion states that previous decisions of the Boards of Appeal are not sufficiently “different” (i.e. “conflicted”) to warrant clarification from the higher Enlarged Board.

Better men than I have summarised the decision here:

http://www.ipjur.com/blog2/index.php?/archives/150-EPO-EBoA-Opinion-in-re-G-0308-Patentability-Of-Computer-Implemented-Inventions.html

http://ipkitten.blogspot.com/2010/05/g-308-software-patents-decision-is-out.html

[Update] and here: http://www.iam-magazine.com/blog/Detail.aspx?g=cc296bce-5de8-484c-ac43-95d5b6ce68df featuring Gill Jennings & Every‘s Peter Finnie

To be honest, the decision was pretty much expected: the European Patent Office (EPO) has been taking a fairly consistent approach to computer-implemented inventions and has a growing body of learning materials on the subject. In fact, by no small coincidence, the book “Patent Law for Computer Scientists“, written by EPO Patent Examiners was released a few days ago. I have ordered a copy and will let you know if it is of any use. A review can be found here.

However, the opinion is not without merit. Its 60-odd pages set out the current state of the law on the issue and may provide a useful caselaw summary. I will attempt to read through the pages of dense courier font shortly.

2 thoughts on ““Software” Patents in Europe

  1. Hi Roy,

    In reply to your post, the result basically says that patents should be rejected based on a criterion of obviousness or inventive step rather than whether it is implemented in software or hardware. In my understanding the recent German case said much the same thing.

    While this may seem like a legal “trick”, it is in a fact a compromise based on the fact that software solutions can be implemented in hardware and vice versa. It would be more unfair if a technical solution was only patentable if stored in ROM rather than RAM. Also there are many grey areas; for example, should a solution implemented using a field-programmable gate array be patentable?

    There is also the problem of control systems for industrial machinery, if you spend $$$s on R&D to come up with a new method of controlling a machine is it fair that it should only be protected if the engineer painstakingly builds a working system from electronic components rather than implements the method in control code.

    By shifting the emphasis to obviousness these difficult (and probably intractable) philosophical questions are side-stepped and all you need to prove to invalidate a patent is that it has been done before or it is obvious over what has been done before (admittedly often easier said than done). This is a common standard across all fields of technology.

    In my experience when people argue against patents for “software” they often are arguing that a patent should not have been granted because the “software” solution is obvious. If this is true and obviousness can be proved (in court) the patent is invalid and has no value anyway.

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