Why European software patents are legally invalid

Posted by ciaran on Monday, October 13th, 2008 0

The European Patent Convention generally defines whether ideas in a domain are patentable or not. The pertinent part is Article 52 which says:

"Patentable inventions

(1) European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application.

(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

(a) discoveries, scientific theories and mathematical methods;

(b) aesthetic creations;

(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

(d) presentations of information.

(3) Paragraph 2 shall exclude the patentability of the subject-matter or activities referred to therein only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such."

So "programs for computers / shall not be regarded as inventions / as such".

In the 1990s, the European Patent Office created a bizarre interpretation whereby "as such" is a reference to "as programs for computers", and thus the exclusion can be completely ignored if the patent application uses a name other than "programs for computers" for the claimed idea. So if I have an idea related to a program for a computer, and I want to patent that idea *as a computer implemented invention* then that’s no problem. The exclusion is thus a mere formality with no substance, according to the EPO.

Which invites the question: if the drafters intended the exclusion to be meaningless, why did they bother adding it? Of course, the EPO’s interpretation isn’t at all what was intended.

A second obvious problem with the EPO’s interpretation is that it doesn’t just render meaningless the exclusion of computer programs. It renders all the exclusions meaningless, so games, doing business, scientific theories, "rules and methods for performing mental acts" (yes, ways of using your brain), and all the other things listed in Paragraph 2 of Article 52 should be patentable. Which is completely absurd.

Unfortunately, a UK appeal court has recently upheld this bizarre twisting of patents – and that article mis-reports the patent dangers as "protection" for software developers.