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When is software patentable in Europe?

| 18 March 2015
When is software patentable in Europe?

Whether software is patentable has long been a heated debate, and in some ways still is. This is particularly true in Europe, where the European Patent Convention excludes "computer programs as such" from patentability. The definition of this vague term by the European Patent Office has created room for software patents - but only if they provide a clear technological advantage over the prior art, and not just a business improvement or mere automation of nontechnical concepts, no matter how clever these concepts are.

Many patent applications are drafted to reflect the US view on software patents: capture the useful and tangible improvement provided by the inventor, add structural elements such as a processor and database to ensure the invention is tangible enough as a machine, and argue the invention is nonobvious given the prior art. This approach is shaky after the Alice ruling of the Supreme Court, but in Europe it has never been acceptable.

In Europe, patents must be technological in nature and represent a technical inventive step (non-obvious technical improvement) over the prior art. Nontechnical features do not count, and in fact are used against the inventor by arguing these provide the "nontechnical framework" for the skilled person, the starting point from which to demonstrate nonobviousness. This recent case law development has proven a killing blow for many traditional US-style patent applications.

The focus of a European software patent application should be on the technological aspects. Business aspects should not be present in the claims and should not be part of the argument for nonobviousness. For example, one should not talk about storing credit card data but rather about securing the storage of data in general. Problems solved by the invention should be technological, e.g. reducing overhead from encrypting such data or sending such data securely over an insecure network.

At Legal ICT, European patent attorney Arnoud Engelfriet has been patenting software since 1999 and would be happy to evaluate your invention for patentability requirements in Europe.