European Patent Office, i.e., EPO, considers an European patent application in relation to computer software are issues of “whether the subject-matter of the application meets the meaning of an invention” and “the application is with technical characteristic”.
★Regarding the Issue of “Whether the Subject-Matter of Application meets the meaning of an Invention”
☆In the European Patent Convention, it is stated that:
The following in particular shall not be regarded as an application meeting the meaning of invention:
(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.
In the above, “computer software”, i.e., programs for computers, itself is one of the items that is not taken as not meeting the meaning of invention.
However, it should be noted that not all patent applications involving computer programs is necessarily not granted in Europe. In the provision immediately following the European Patent Convention, it is stated that the above provision only excludes the patentability for patent application with subject-matter of computer program. That is to say, only subject matter of “computer programs” itself is excluded from the patentability. In other words, even if one portion of claim of the patent application involves computer programs but some other portion does not involves computer program, the claim shall still be regarded as being eligible.
On the basis of this provision, an application involving computer programs usually can be protected in forms of “computer-implemented invention” whose subject matter could be a computers, computer networks or a programmable apparatus, wherein the computer program is used for achieving the characteristic features of the application, but is not subject matter of the application.
★Regarding the Issue of “the application is with Technical Characteristic”
☆In the Guidelines for Examination in the European Patent Office, it is stated that an invention must be of “technical characteristic”. While an application involves to “computer programs”, if the claimed subject-matter has a technical characteristic, the application shall not be excluded from patentability.
Whether an application of computer program involves technical characteristic is determined on when running on or loaded into a computer, the application brings out a further technical effect going beyond the “normal” physical interactions between the program (software) and the computer (hardware). Therefore, a normal physical effects while executing a program, e.g. electrical currents, are not sufficient to be regarded having technical characteristic, while a further technical effect is needed. When a computer program produces a further technical effect, it shall be considered meeting the issue of “the application is with technical characteristic. Any claimed subject-matter defining or using technical means meets the above requirement.
Since a computer program application generally involves defining a method which is able to be executed by a machine, but this kind of definition merely obtains a computer algorithm to accomplish a procedure, this kind of application, however, should involve technical characteristic beyond the above. Otherwise, the application should be regarded not having technical characteristic.
In terms of further technical effect, a computer program is considered having technical effect if the computer program has technical effect of bringing out: the efficiency or security of a process, the management of computer resources required or enhancement of data transfer speed in a communication link. On the contrary, a computer program is considered to be not having technical effect and should be ineligible if the application merely defines the origin of the data records or the enhancement of data transfer is merely obtained by applying an algorithms.
※Tips for computer software related application filing patent in Europe.
In order to solve the above issues effectively, the tips include:
1. A patent application is considered ineligible in Europe only when it is entirely directed to computer software. Therefore, when a computer software is to be filed in Europe, the application should be drafted not directing to a computer software, but is directed to a technique that is implemented by a computer hardware.
2. An invention must have technical characteristic in Europe, and therefore, the computer software should be capable of bringing out, when the computer program is running on or is loaded into a computer, a further technical effect going beyond the normal physical interactions between the software and the hardware in order to prove it has a technical characteristic.
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