The Technical Board of Appeal 3.5.1 of the European Patent Office (EPO) has decided that, in principle, media claims (covering the computer program on a storage medium ...) and Internet claims (covering the transmission or electronic distribution of the computer program) are admissible. ...
According to the US-CAFC ("In re Lowry") and the Guidelines of the Japanese and the Korean Patent Offices, data structures are protectable by a patent claim. This question has not yet been decided by the Technical Boards of Appeal of the EPO. In view of the EPO decision "BBC / Colour Television Signal" we are, however, quite confident that the EPO will grant, in the long run, such claims as well.
In view of the practice of the last two to five years it can be said that, in principle, a patent will be granted for all computer programs (including business methods) which are new and inventive. This is at least valid for the EPO and the German Patent and Trademark Office, but not yet for the UK Patent Office. In connection with this we refer to the "SOHEI" case (EP 209907 for a computer managment system), and EP patents for a trade warrant system (EP 762304), a stateless shopping cart for the web (EP 784279), and an interactive information selection apparatus (for selecting the items for a meal) (EP 756731). Thus the practice of the EPO seems to be quite similar to that of the USPTO, even if the wording of the claims differs somewhat.
In this connection it may be interesting to know that in 1997 the number of European patent applications in the field of data processing, most of them relating to computer programs, had the highest growth of 28% compared with 1996, and that the EPO has started to establish a second division of examiners dealing with software applications.
In General the practise of the German PTO is quite similar to that of the EPO. The UNION Round Table Convference on "Patenting of Computer Software" in December 1997 obviously had a good impact not only on the European, but also on the German situation. In 1998 the 17th Senate of the German Patents Court, who had a rather restrictive practice as to patenting of computer programs in the past, surprisingly admitted in 1998 in two cases the appeal on points of law to the German Federal Supreme Court (BGH). Such an admission had been denied all the years before. This will give the BGH the possibility to consider the discussion of the last years and to bring its case law of 1991/1992 in line with that of the Technical Boards of Appeal of the EPO.
One judge of the FSC, who is the expert in the FSC for computer programs, has just published an article showing his "personal opinion", according to which, in principle, computer programs should be considered technical. However only the conversion of the logical concept into the operation of the computer or the realization of the logical concept (program) by the computer, but not the logical concept itself should be protected by patents. This approach seems to be quite similar to what is known as "technical application" of the computer program in the USA.
The latest state of the discussion on the amendment of the European Patent Convention (EPC) is that there seems to be a great consensus within the deciding bodies of the EPO and the European Commission that Art 52(2) and (3) EPC (including the exclusion of computer programs as such) should be cancelled and that Art. 52(1) EPC should be brought in line with Art 27(1) TRIPS Agreement. Although such an amendment could take years, the efforts towards such an amendment may have an impact on the general practice of the EPO so that the exclusion of computer programs as such from patentability in Art. 52(2) EPC will be interpreted in a very narrow way. |