[emphasis added]The words "as such" have caused patent applicants, attorneys, examiners, and judges a great deal of difficulty since the EPC came into force in 1978.
[9] Like the other parts of the paragraph 2, computer programs are open to patenting to the extent that they provide a technical contribution to the prior art.
According to the jurisprudence of the Boards of Appeal of the EPO, a technical effect provided by a computer program can be, for example, a reduced memory access time, a better control of a robotic arm or an improved reception and/or decoding of a radio signal.
It does not have to be external to the computer on which the program is run; reduced hard disk access time [citation needed] or an enhanced user interface could also be a technical effect.
[15] As a Board of appeal put it in T 258/03 (Reasons 4.6) in relation to the fact that the "contribution approach" was no longer applicable, [we are] aware that [our] comparatively broad interpretation of the term "invention" in Article 52(1) EPC will include activities which are so familiar that their technical character tends to be overlooked, such as the act of writing using pen and paper.
Acceptable software patent claims can meet the first hurdle by starting with "computer-implemented method for..." or "system configured to...".
The practice for assessing the technical character for the second hurdle in the EPO is described in the Guidelines for Examination, which provides specific examples in the field of artificial intelligence and machine learning.
The decision of EPO (directly or in appeal proceedings) not to a grant a European patent can however not be challenged in national courts.
As evidenced by the judgment in Dyson v Hoover the commercial background to an invention may help to show that a certain technical advance was or was not obvious.
Mr Justice Pumfrey came to the conclusion that the claimed invention was obvious, but specifically rejected the allegation that it was excluded from patent protection as a computer program as such.
The UK Court of Appeal judgment in Aerotel v Telco and Macrossan's Application criticised EPO practice to deem non-technical subject matter, such as new music or a story, as part of the prior art as not being intellectually honest.
[28] The EPO Boards of Appeal have since responded by saying that the technical effect approach (with the rider) applied in the Aerotel/Macrossan judgement is irreconcilable with the European Patent Convention.
In fact, more recently the same court has repeatedly upheld the rejection of patent claims to computers and programs operating thereon, as in Rentabilitätsermittlung[34] as well as in Informationsübermittlungsverfahren.
[35] France was the first European nation[36][37] that excluded «les programmes ou séries d'instructions pour le déroulement des opérations d'une machine calculatrice» ("programs or series of instructions for the procession of operations of a calculating machine", i.e. computer programs) from being an industrial invention in 1968 in Loi n°68-1 Article 7.
On 27 October 2006, in its judgment in Aerotel v Telco and Macrossan's Application, the Court of Appeal of England and Wales said (at para.
Subsequently, however, it appears that Alain Pompidou has written a letter dated 22 February 2007[48] to Lord Justice Jacob of the Court of Appeal of England and Wales (with a copy to the United Kingdom Patent Office) advising that he has "decided that at the moment there is an insufficient legal basis for a referral under Article 112(1)(b)", and that "the appropriate moment for a referral would be where the approach taken by one Board of Appeal would lead to the grant of a patent whereas the approach taken by another Board would not".
[50] Eventually, on 22 October 2008, the then President of the EPO, Alison Brimelow, referred a point of law to the Enlarged Board of Appeal.
Proponents of the Directive claimed its purpose was to clarify the meaning of Article 52, by consolidating existing EPO practice.
This failure to reform the exclusion of software followed the failed attempt to delete programs for computers from Art.
At the time the reform was explicitly derogated in order to await the outcome of the consultation process for this EU Directive.
Final interpretation of the law in this area thus continues to be the responsibility of national courts, following national case-law (except when a European patent application is refused or when a European patent is revoked in opposition proceedings before the EPO, in which case the EPO has the final say regarding the interpretation of the EPC).
According to a European Commission press release of 2002, "since the EPC came into force in 1978, at least 30,000 patents for computer-implemented inventions have already been issued [by the EPO]".