What is a Computer-Implemented Invention?

Can a Washing Machine be a "Computer-Implemented Invention"? Only Computer Programs are "Computer-Implemented". According to Art 52 EPC, programs for computers are not inventions in the sense of patent law.

The term "computer-implemented invention" is not used by computer professionals. It is in fact not in wide use at all. It was introduced by the European Patent Office (EPO) in May 2000 in Appendix 6 of the Trilateral Conference, where it served to legitimate business method patents, so as to bring EPO practise in line with the USA and Japan. Much of the European Commission (CEC) directive proposal is based on wordings from this "Appendix 6". The term "computer-implemented invention" is a programmatic statement. It implies that calculation rules framed in terms of the general-purpose computer are patentable inventions. This implication is in contradiction with Art 52 EPC, according to which algorithms, business methods and programs for computers are not inventions in the sense of patent law.

Programmers speak about "implementing a specification". A patent claim usually specifies a sequence of events (i.e. a program) which could be implemented by a programmer or by an engineer. "Implementation" in this context means "working it out in detail so that it can run without errors". The implementation requires human work. It is never done by a computer, and in fact computers will usually not come into play during the implementation phase. Rather, they will be used for executing the final result, and this result will in principle be independent of the computer architecture.

Moreover, the programmer would not say that she is implementing an "invention", no matter how new and admirable the specification is. Rather she might be implementing an algorithm, an idea or, more often, a complex combination of such abstract elements. Real advances in the art of programming are generally of abstract nature and therefore would usually not be referred to as "inventions" by the person skilled in the art.

A term like "computer-executed schemes" or "software innovations" would have been less conducive to misunderstanding. Thereby it would however not have served the aims of the proponents.

The proponents of patents on "computer-implemented inventions" regularly claimed that their term refers "only to washing machines, mobile phones, intelligent household appliances ..." and "not to software as such". Unfortunately this claim is at odds with the definition wording used by the proponents themselves. The term "computer-implemented invention" as defined in the EPO's Trilateral Appendix 6 and in the Commission's Directive Proposal refers to nothing but data processing programs running on general-purpose computing equipment. Even if the extremely rare cases where some additional equipment is involved in an EPO-granted patent on what they would call a "computer-implemented inventions", the gist of the "invention" will lie in data processing, not in applying heat and reactants to clothes. Otherwise this would, according to the EPO/CEC definitions, no longer be a "computer-implemented invention" but rather an ordinary technical invention.

The European Parliament has redefined the term "computer-implemented invention" in such a way that general-purpose data processing does not qualify while a washing machine, where data processing has only an auxiliary function and is not constitutive for the invention, would qualify. This amendment is fiercely opposed by the European Commission and by all those who earlier claimed that they want only washing machines and the like but "not software as such" to be patentable.

While the redefinition of the European Parliament constitutes a clever way of correcting a central flaw of the proposed directive, it does not make the text much clearer. The misleading term "computer-implemented invention" continues to be used, and it will continue to mislead all those people who have not carefully read and internalised the definition. Thereby it would also embody the supremacy of a small group of newspeak-creating lawyers over the basic rules by which programmers and engineers have to abid. Although the Parliament could be credited with ending the invasion of the patent lawyers into the domain of the software engineers, it would leave a symbol of that invasion intact.