Keith Beresford 2000: Patenting Software Under the European Patent Convention

Contents: The European Patent System and the definition of invention. Technical features and technical effects in software. Claim formulation for maximum protection. Supporting the claims by the description. Examples of granted software patents: user interfaces; software for generating computer programs; the rejected document processing cases; business model patents and E-commerce postscript. Jurisdiction: UK and EU.

Abstract: It is commonly held that software, e-commerce and business models related inventions are inhenrently unpatentable in Europe. In reviewing the situation, this article emphasises the large number of inventions in this field which have in fact been patented through the EPO or through national patent offices in Europe. [..] He shows that, if proper attention is paid to both the substance and the form of claims and description, to direct the reader to the technical problem and its solution, effective protection is in fact very often available.

Examples: business management and financial systems:

• EP0407026 (Reuters)
• EP0209807 (Sohei)
• EP701717 (Shepherd)
• EP838063 (Realkredit Danmark AS)

[Here] there has arisen one of the main misconceptions concerning the patentability of software implemented inventions under the European Patent Convention: this requirement is very far from being as restrictive as is frequently believed

... thus for example ... software that takes up less space in the computer, data structures that take up less memory space, file arrangements which take up less memory space, software which will operate more quickly, improved control facilities for the human operator of the computer system, software which makes it possible to perform by computer something which could previously only be done manually or mentally, or software which is more reliable.

... basis for patentability has been found to arise in new user interfaces which make the computer easier or more efficient to operate (Sohei), or which "ease the mental burden" on the operator (T 95/0333)

It is well settled that the validity of a patent, challenged on the ground of inventiveness, may be established though the inventive step represent a very slight advance.