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EPO Accepts Patentability of Computer Programs

EPO Accepts Patentability of Computer Programs

01/03/99

A landmark decision just issued by the European Patent Office Board of Appeals has opened the door to patent claims directed explicitly to computer programs and computer storage media loaded with such programs.

The Appeals Board has effectively overturned many earlier EPO decisions and has specifically stated that the Guidelines for Examination are wrong in this matter.

Unlike US and Japanese law, there is a specific clause in European patent law which excludes from patentability "computer programs as such". This has hitherto been interpreted by the EPO as a ground for refusal of any claims directed to a computer program or storage media thus denying software companies direct protection in Europe against their primary infringers and effectively disadvantaging the European software industry. It has always been possible to protect software in Europe by claims directed to the combination of the software and the computer programmed by the software. However these claims are not directly infringed by writing or selling pirate software. This decision will change that and offer software houses an additional and stronger weapon in their Intellectual Property armoury for fighting infringers.

The decision confirms that acceptable claims can now be directed to the computer program itself or as a record on a carrier. We are confident that the European patent system will now provide a useful and valuable route for protection of software inventions and we urge you to encourage your clients to protect their interests accordingly.

Naturally any patent claim to software must satisfy the other criteria of the European patent system in that it must be novel, inventive and capable of industrial application. To this end it must bring about a technical effect which goes beyond the "normal" physical interactions between the program and the computer on which it runs.

If you would like any further information on this decision, or have any queries in general on the question of the patentability of computer software in Europe, please do not hesitate to contact us.

March 1999