European software patentability: A new hope

European software patentability: A new hope

The long and winding code – a short history of European software patentability through the lens of pop culture

In life, it can be easy to get lost in the here and now, not able to see why we are where we are or where we should be going. This same issue can arise when reviewing a tricky software case. How is this business method technical? Why can the patent office not see this?
Ancient Greek thinking has helped many people over centuries deal with this problem. Marcus Aurelius’ Stoic concept of zooming out to put your current situation in perspective is a valuable mechanism for life. However, this technique can also help us find our way through some of the tricky objections that patent offices throw at us. By understanding the huge body of case law that has shaped the thinking of the patent office, we can understand their perspective and issues to thereby identify the best way forward, as well as how best to present a case when drafting. This is even more useful in 2022 and beyond given that just last year the Enlarged Board of Appeal – the highest decision-making body of the EPO - handed down its first decision relevant to computer implemented inventions in over a decade.
Zooming out together, we’ll look at the big picture of software patentability in Europe, on a journey through pop culture to put the passage of time into perspective.

Instalment I: A New Hope

A long time ago, in a Federal Republic not so far away, after 20 years of negotiation and debate, 16 European states came together to create a system to enable a single patent application to be filed to provide coverage across all of these European states. On that day in Munich in 1977, there was a new hope created by this newly harmonised approach to patent protection in Europe. The aim was to simplify the process of obtaining patent protection across a large market, reduce costs for applicants and make Europe a more attractive place to do business.
Back in 1977, computers were developing fast, but still extremely primitive compared to what we take for granted today. To put it in perspective, that year saw the release of Apple’s first commercially viable product – the Apple II computer, Atari’s first games console – the VCS (Video Computer System), and the Commodore PET (Personal Electronic Transactor) with its innovative built-in compact cassette data storage. At the same time, Hollywood was dreaming up the future of computers in the form of droids like C3PO and R2D2.
It was in this context of 1970s computing that the European Patent Convention (EPC) was written. Within it, we see explicit exclusions to “programs for computers” as well as other concepts that we have since seen are critical parts of our modern computer-implemented world such as “presentations of information”, “methods for doing business”, “mental acts” and “mathematical methods”. These were not technical innovations in the sense that patents were intended to protect.
The exclusions from patentability in the EPC seemed to mark the beginning of the end of software patents in Europe. How was there any hope of software patents being granted and software benefiting from the economic stimulus provided by the patent system?
We’ll have to wait until 1986 to find that out when our saga continues.
If you’re interested you can read the relevant passage of the EPC here: Article 52 EPC

If you have questions about patenting software or related inventions in Europe, please contact Nick Shipp or your usual Kilburn & Strode advisor.

Preview of Instalment II: That’s not technical, this is technical

The year was 1986 and the case was Vicom. This was a critical turning point for software patents in Europe because the EPO concluded that computer programs, and in fact any of the exclusions from patentability set out in the EPC, were “not excluded if technical”. Continue reading►

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