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European Software Patentability: That’s Not Technical, This Is Technical – Patent


The long and winding code – a short history of European
software patentability through the lens of pop culture

We’re taking you on a journey through the history of
software patents in Europe, through the lens of pop culture. By
zooming out and looking at the big picture of what the EPO has
taught us over the years, we’ll be building up a clear vision
on what you need to do to improve the success of your software
patents at the EPO. At each step along the way through history,
we’re stopping to see a case where the EPO redefined the law in
a way that is still applied today.

As we saw from our first instalment from 1977, “European
software patentability: A new hope”, software patents looked
doomed from the start in Europe due to the explicit exclusions
provided in the newly agreed statute, the European Patent
Convention (EPC).

We had to wait some time to see change – in fact, we had
to wait until the year that Mick Dundee was showing those New York
hoodlums what a real knife looks like. At the same time, the EPO
was finally being shown what a real software invention looks like,
and luckily the EPO liked the look of it.

Instalment II: That’s not technical, this is technical

The year was 1986 and the case was Vicom. This was a critical
turning point for software patents in Europe because the EPO
concluded that computer programs, and in fact any of the exclusions
from patentability set out in the EPC, were “not excluded if
technical”.

The patent system can be traced back to the protection of
technical innovations in Ancient Greece, then 15th
century Venice, before being formalised and truly exploited in
16th century France and England, arguably being a key
stimulus for the onset of the industrial revolution. From this
historical backdrop, the idea that inventions could be patentable
if technical was nothing new at all, in fact Vicom simply applied
this context to the case. Whilst not a ground-breaking concept, the
fact it was applied by the EPO meant that patent attorneys of 1980s
Europe specialising in computer technologies certainly had a good
reason to raise their glass of Beaujolais Nouveau because their
careers were transformed by this positive decision forever.

The invention itself related to a pretty complex mathematical
method for processing image data by use of two-dimensional data
arrays. However, as we learnt in “European software
patentability: A new hope”, in Europe there are explicit
exclusions in statute (in Article 52(2) EPC, to be precise) of
“programs for computers”, “presentations of
information”, “methods for doing business”,
“mental acts” and “mathematical methods”.
Hence, on the face of it, whilst a technical advancement, and a
practically useful invention, it looked to be excluded as being a
“mathematical method”. However, the EPO thought
otherwise, and in doing so laid out a path for software patents to
be granted in Europe for the decades to follow. In particular, the
EPO stated:

“Digital filtering in general and digital image
processing in particular are “real world” activities that
start in the real world (with a picture) and end in the real world
(with a picture). What goes on in between is not an abstract
process, but the physical manipulation of electrical signals
representing the picture in accordance with the procedures defined
in the claims. There is no basis in the EPC for treating digital
filters differently from analogue filters. The appellants have thus
made a new and valuable contribution to the stock of human
knowledge and patent protection for this contribution cannot be
denied merely on the basis that the manner in which the invention
is defined would appear to bring it within the exclusions of
Article 52(2) EPC [i.e by virtue of being a mathematical
method]”

It then went on to state that:

“The Board, therefore, is of the opinion that even if
the idea underlying an invention may be considered to reside in a
mathematical method a claim directed to a technical process in
which the method is used does not seek protection for the
mathematical method as such.”

The case therefore set a hugely important precedent that those
inventions arguably excluded by statute such as mathematical
methods and programs for computers can be patentable in Europe if
they form part of a technical process.

In addition to the landmark teaching of how to get software
patents granted in Europe provided in Vicom, the decision used some
interesting words. The beady-eyed amongst you may have noticed in
the first extract from the decision above the phrase “abstract
process” is used to define whether or not the invention might
be patentable at the EPO. One has to ask, could these words have
impacted patent law beyond European shores?

So not only did Vicom mark a new hope for software patents in
Europe by providing a clear path for technical processes carried
out under the direction of a computer being patentable, it also
threw out the idea of whether or not a process is
“abstract” or not, a phrase that has been feared, loathed
and puzzled over by many a US patent practitioner since its
critical use in the US Supreme Court’s decision, Alice Corp. v CLS Bank.

This all raises the question, did 1986 mark the year we saw the
most important Decision in the history of software patents, not
just in Europe, but globally?

If you’re interested, you can read the decision here: Vicom / Computer-related invention – T
0208/84
.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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