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 European 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 EPC has a section on patentable subject-matter, which also mentions computer programs. According to Article 52:
(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 use of as such allows the EPO to grant software patents by interpreting it as nullifying the exclusion.
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.
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.
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).
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.
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, 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.
|State||Date of accession|
|Albania||1 May 2010|
|Austria||1 May 1979|
|Belgium||7 October 1977|
|Bulgaria||1 July 2002|
|Switzerland||7 October 1977|
|Cyprus||1 April 1998|
|Czech Republic||1 July 2002|
|Germany||7 October 1977|
|Denmark||1 January 1980|
|Estonia||1 July 2002|
|Spain||1 October 1986|
|Finland||1 March 1996|
|France||7 October 1977|
|United Kingdom||7 October 1977|
|Greece||1 October 1986|
|Croatia||1 January 2008|
|Hungary||1 January 2003|
|Ireland||1 August 1992|
|Iceland||1 November 2004|
|Italy||1 December 1978|
|Liechtenstein||1 April 1980|
|Lithuania||1 December 2004|
|Luxembourg||7 October 1977|
|Latvia||1 July 2005|
|Monaco||1 December 1991|
|Montenegro||1 October 2022|
|North Macedonia||1 January 2009|
|Malta||1 March 2007|
|Netherlands||7 October 1977|
|Norway||1 January 2008|
|Poland||1 March 2004|
|Portugal||1 January 1992|
|Romania||1 March 2003|
|Serbia||1 October 2010|
|Sweden||1 May 1978|
|Slovenia||1 December 2002|
|Slovakia||1 July 2002|
|San Marino||1 July 2009|
|Turkey||1 November 2000|
Related pages on ESP Wiki
- Wikipedia: Software patents under the European Patent Convention
- Analysis of how the EPO justifies granting software patents under the EPC
- Art 52 EPC: Interpretation and Revision, by FFII
- Software patents under the European Patent Convention, Arnoud Engelfriet on how to make the software exclusion meaningless