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European Patent Convention

The European Patent Convention (EPC) is an international agreement signed by most countries of Europe in 1973. The primary organ created by the EPC is the European Patent Office (along with the Europan Patent Organisation).

The EPC is published officially in English, French, and German. It was revised in 2000, but not in ways that affected the (non-)patentability of software ideas.

The membership currently includes all the countries that form the European Union, plus others. As of August 2010, there are 38 member signatories of the EPC[1]: Albania, Austria, Belgium, Bulgaria, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Macedonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, Norway, Poland, Portugal, Romania, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, and the United Kingdom.

Article 52: patentable subject matter

The exact text

Article 52:[2]

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.

The most important words are "The following in particular shall not be regarded as inventions [...] programs for computers [...] as such".

The words "in particular" imply that this is a non-exhaustive list, meaning these should not be interpreted narrowly.

The common trait of the exclusions

The excluded acts are all things that some people do for free - as a hobby, or by accident, or while doing something else. It's a common philosophy which prevents patents from being a burden on fields in which progress would be greatly burdened by the slow, expensive patent system.

See also: Software progress happens without patents

The "doing business" exclusion is for "schemes, rules and methods for [...] doing business", so it's also for lawmakers who regulate business, and for commentators, advice bodies and the act of designing these schemes, rules and methods is also done at no cost in the phase before launching a company.

Travaux préparatoires

Link: ... /traveaux.html

According to UK Lord Justice Jacob

On the utility of the documents written during the drafting of the EPC, the "travaux preparatoires", UK's Lord Justice Jacob said in the 2006 Aerotel v. Telco ruling: what help can be had from the travaux preparatoires to the EPC? The answer is not a lot. Jacob cites two articles written by Dr. Justine Pila of the Oxford University Intellectual Property Research Centre:

  • Dispute over the Meaning of “Invention” in Art.52(2) EPC – The Patentability of Computer-Implemented Inventions in Europe 36 IIC 173;
  • Art.52(2) of the Convention on the Grant of European Patents: What did the Framers Intend? 36 IIC 755

According to the EPO

According to the EPO, as written in EPO EBoA referral G3-08 (page 12 of 18 of the referral):

computer programs were to be understood as a 'mathematical application of a logical series of steps in a process which was no different from a mathematical method

The document claims this is backed up by "a statement by the United Kingdom delegation in the travaux préparatoires", and gives the reference: "Minutes of the 9th meeting of Working Party I, Luxembourg, 12-22 October 1971, BR 135 e/71 prk, p50, 96".

This is mentioned again on page 54 of the opinion of the Enlarged Board of Appeal of 12 May 2010, which noted:

It was apparently the intention of the writers of the EPC to take the negative view, i.e. to consider the abstract formulation of algorithms as not belonging to a technical field (see e.g. the reference to the travaux préparatoires in the referral on page 12).

Comparing exclusions

To look for insight into how the exclusion on "programs for computers" was intended to be interpreted, we can compare it to the other things excluded and look for a common logic, such as:

  • They're all things that individuals do without necessarily expecting financial return

If this underlying logic is accepted, then developing software for computers must be excluded.

In the UK, the idea that the exclusions contain an underlying logic was rejected by Deputy Judge Peter Prescott QC in 2005.[3]

Case law

A 25-page appendix in the UK 2006 Aerotel v. Telco ruling discusses EPC case law in the section Analysis of the Case Law.

Dangers of the EPC being changed

Unanimity among signatories is required to change the EPC, and this is rather unlikely.

A second possibility, raised by FFII,[4] is that the "Implementing Regulations" of the EPC could be changed if 75% of signatories agree. According to FFII, biotechnology patents were legitimised in this way.

Related pages on ESP Wiki

External links