European software patentability: Zooming back in

European software patentability: Zooming back in

We’ve taken you on a journey through the history of software patents in Europe, through the lens of pop culture. In Part I taking place in 1977, we saw a scene of gloom set in which the likelihood of software patents being granted at the EPO looked close to impossible. However, over a period of more than 40 years since then, the EPO’s Board of Appeal has a shown that a different reality exists today.

Part XII: Zooming back in

Now we have zoomed out over this period spanning 1977 through to 2021 taking in Britney, Becks and Bieber along the way, I think we have that Stoic perspective on software patentability in Europe. Now we understand the big picture, we understand not just what the law is, but importantly why it is what it is. We understand how we have reached where we are today.
So where are we today? Well, when the Enlarged Board of Appeal of the EPO issued its first decision in over a decade relevant to computer implemented inventions in 2021, it confirmed at the highest level that there are aspects of computer-implemented simulations that the Enlarged Board have said could be patentable, but the key factor in every case will be that of whether there is a "technical effect". The Enlarged Board has made clear that the EPO’s existing COMVIK approach to assessing the patentability of computer-implemented inventions applies equally to simulation-type inventions. Whilst there is a huge amount of commentary about this important decision (for example, read here), the key message is that the journey travelled to get to the present day has played an important part in shaping the law that is applied by the EPO today.
So, from a practical perspective, what have we learnt? Well, let’s summarise it in 10:

  1. While the EPC suggests software is excluded from patentability at the EPO, this is certainly not the case. (See Part I)

  2. Software patents are not excluded from patentability provided they are applied to a technical process in the real-world. (See Part II)

  3. For an invention to be “technical” we need to see a “further technical effect” such as faster processing, less bandwidth used or better use of memory resource. (See Part III)

  4. If a claim consists of technical and non-technical features, only the technical features can be used to assess inventive step. (See Part IV)

  5. Changing the way a business process works, even if it results in some technical advantages, is probably not going to be patentable. (See Part V)

  6. When it comes to software such as simulations, the purpose of the invention needs to be technical and a “technical effect” shown. (See Part VI)

  7. Graphical User Interfaces that improve human-machine interaction can be patentable. (See Part VII)

  8. But if the Graphical User Interfaces rely on the user’s brain to perform part of the process, the technical chain is broken and the invention is not patentable. (See Part IX)

  9. Graphical User Interfaces that take into account a user’s physiology can be patentable, but those that rely on a user’s psychology cannot. (See Part X)

  10. The concept of the notional business person can help us to better understand what is and what is not technical in a claim, which in turn helps us understand what features of a claim can be used in the assessment of inventive step. (See Part XI)

By zooming out, understanding the history and cases that define how the EPO treats software patents, we have an excellent toolkit to help us get software patents granted at the EPO. Unlike other jurisdictions, it is fair to say that the development of EPO case law is anything but a swinging pendulum. In fact, as we have travelled along this long and winding road through the decisions of the EPO we seem to have been slowly directed towards an ever-clearer target, which is helpful for companies looking to obtain patents in Europe for computer-implemented inventions.
So what does the future hold? Well, with the recent decision issuing from the highest level, the future is looking pretty certain. But the future has not been written yet, no one’s has, we just hope the EPO continues to make the future of patenting software in Europe a good one.

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

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