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IP Hit or Miss? Software Patents in Europe

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code_invertedIn a recent article in the Guardian regarding President Obama’s plans to curb the perceived abuse of the patent system by non-practising entities (also known as patent trolls), the author points out that none of the recommendations involve a ban on software patent in the US, stating that:

“Nowhere in the administration’s recommendations is one that already applies in Europe: an outright ban on software patents…”

But is there such an “outright ban” on “software patents” (computer-implemented inventions) in Europe?

Article 52(2) of the European Patent Convention (EPC) states that computer programs are not considered to be patentable inventions. However, there is a caveat in the next section of this article, namely Article 52(3) EPC, that means that only inventions relating to computer programs “as such” are excluded from patentability. The extent to which the words “as such” narrow down the interpretation of the exclusions has been the subject of much debate within the patent profession, and in national and European Patent Office case law.

The result of this is that software can be patented with the European Patent Office under certain circumstances and there is no “outright” ban. It has generally become accepted that (on top of the usual requirements of novelty and inventive step) that an invention relating to a computer program is patentable if it makes a contribution in a technical field. For example, the inventive software could be patentable if it made a process on a computer run faster, more securely or use less system resources.

So, as far as the above quoted part of the article is concerned:

Verdict: IP Miss

If you’re a software developer seeking patent protection for your computer-implemented invention, then click here.

If you’re anti-software patents, then click here.

For the EPO’s position on this subject, then click here.

Laurence Lai   10 June 2013

This article is part of an occasional series of articles that takes a light-hearted look at IP as it appears in the media (films, TV, news reports etc) as an excuse to talk about different IP topics. A vague rating of “IP hit or miss?” may also be given depending on how well the particular IP concept has been incorporated into the media in question.

Previous “IP  Hit or Miss?” article – IP Hit or Miss? Armageddon – Science Miss but IP Hit?

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