Computer Implemented Inventions Directive

Pursuant to EPC Article 52(2)(c) and (3), inventions relating to computer programs ‘as such’ are excluded from patentability. Case law relating to this subject has developed in both the EPO and its Member States, most of which follows the principle that if an invention, implemented through the execution of software, results in a ‘technical contribution’, for example, an increase in the efficiency of a physical process, it cannot be excluded from patentability.

On February 20, 2002, the European Commission initiated a proposal for a directive in order to harmonise the approach by the EPO and its Member States towards computer implemented inventions (CII).

The central requirement of the proposed directive was that in order for a computer implemented invention to be considered patentable, it must make a contribution in a technical field that is not obvious to a person skilled in the art.

Support for the implementation of the harmonisation directive was headed by IBM, Microsoft, Hewlett-Packard and the EPO who believed the directive to be a confirmation of the practise of granting software patents.

However, opponents of the directive objected to the vaguely defined phrase ‘technical effect’, arguing that the implementation of the harmonisation directive would lead to abuse of the software patent system, suppressing innovation and eliminating competition by introducing a system that allows almost unlimited patentability of software.

On September 24, 2003, the European Parliament passed the directive in an amended form, the most significant change being the inclusion of a definition of the ‘technicity’ requirement for patentability, distinguishing between abstract information-processing processes and specific kinds of physical processes.

The directive was passed to the Council of Ministers, who resubmitted a further amended form of the proposal to the Parliament in June 2005. On July 6, 2005, Parliament rejected the proposal by a very large majority.

As a result EU national patent laws and practices will not be affected.

The EPO will also continue to grant patents for software implemented inventions, widely defined as inventions whose implementation involves the use of a computer, computer network or other programmable apparatus, the invention having one or more features which are realisable wholly or partly by means of a computer program, which solve a technical problem.