EPO confirms position on the patentability of computer programs
11/08/2010

The Enlarged Board of Appeal (EBoA) of the European Patent Office (EPO) has issued an important decision regarding the patentability of computer programs under the European Patent Convention (EPC). The full decision, which is about 61 pages long, can be found at: http://www.epo.org/topics/news/2010/20100512.html.
The Enlarged Board of Appeal had to consider four questions referred to it by the President of the EPO in October 2008 regarding points of law which could have a significant impact on this area of law.

The Enlarged Board of Appeal, in developing an opinion, considered the development of case law in the field of software patents and found two conflicting decisions of Boards of Appeal. In appreciation of this, it was stated that “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.” The EBoA found that in these decisions there was not sufficient divergence to suggest a conflict in case law but rather that the Boards of Appeal had merely developed the law.

The EPO’s position regarding the patentability of computer-related inventions is to allow patents that at least involve some technical feature, for example, some form of physical hardware. Furthermore, the invention must result in an improvement or step forward on what has been done previously. This is known as a “further technical effect.”

This decision removes all doubt regarding whether the position in law is likely to change and shows that the EPO has now settled into a well-accepted approach. After a rejection of a draft Directive on the patentability of computer programs in 2005, it is unlikely that this matter will be revisited by the EPO in the near future.

This decision carries weight with regards to the patentability of computer programs in South Africa considering that our patent system is largely based on that of the EPO and the United Kingdom.
Wynand Fourie
Candidate Attorney
wynand-f@adamsadams.co.za