Software Patents in Europe - new ruling confirms current EPO position

An important decision (G3/08 - available in full here) has confirmed the current legal position concerning software patents in Europe. More generally, this decision relates to the exclusions that define the types of inventions that can (and cannot) be covered by patents as a matter of public policy, in the fields of computers and computer software.

The decision, which runs to some 61 pages, is an opinion by the Enlarged Board of Appeal of the European Patent Office (EPO).

The first few pages of the decision review the many comments and proposals that were submitted both by patent professionals (e.g. patent attorneys on behalf of their clients) and workers in the computer industry, such as affiliations promoting Free and Open Source Software. This highlights the many different groups who all have an interest in the patent system, and the sometimes quite different opinions on what the patent system is for.

The Enlarged Board then considered the relevant case law in detail and decided that the legal position has indeed developed over the years with different positions being prevalent at different times - "case law in new legal and/or technical fields does not always develop in linear fashion, and that earlier approaches may be abandoned or modified". However, over the past few years, the EPO position has now settled into a consistent and well-accepted approach.

The EPO’s approach is generally favourable to allow patents for computers and computer software, provided the invention involves some form of physical hardware. However, the focus at the EPO then switches to make sure that the invention involves a good step forward or improvement leading to a better product overall. In legal terms this is called a "further technical effect".  This opinion by the Enlarged Board of Appeal confirms the generally open approach of the EPO and and gives their approach a comprehensive, high-level legal basis.

Appleyard Lees are experts in this area of the law - if you are stuck then give us a call.

Author - Ian Robinson, Partner - details here.