European Patent Convention

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The European Patent Convention (EPC) is an international agreement signed in 1973. The primary organ created by the EPC is the European Patent Office (along with the Europan Patent Organisation).

The EPC is published officially in English, French, and German. It was revised in 2000, but not in ways that affected the (non-)patentability of software ideas.

The membership currently includes all the countries that form the European Union, plus others. As of December 2009, there are 36 member signatories of the EPC[1]: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, former Yugoslav Republic of Macedonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, Norway, Poland, Portugal, Romania, San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, United Kingdom.

Contents

[edit] Article 52

[edit] The exact text

Article 52

Patentable inventions

(1) European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.

(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

(a) discoveries, scientific theories and mathematical methods;

(b) aesthetic creations;

(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

(d) presentations of information.

(3) The provisions of paragraph 2 shall exclude patentability of the subject-matter or activities referred to in that provision only to the extent to which a European patent application or European patent relates to such subject-matter or activities as such.

[edit] travaux preparatoires

On the utility of the documents written during the drafting of the EPC, the "travaux preparatoires", UK's Lord Justice Jacob said in the 2006 Aerotel v. Telco ruling: what help can be had from the travaux preparatoires to the EPC? The answer is not a lot. Jacob cites two articles written by Dr. Justine Pila of the Oxford University Intellectual Property Research Centre:

  • Dispute over the Meaning of “Invention” in Art.52(2) EPC – The Patentability of Computer-Implemented Inventions in Europe 36 IIC 173;
  • Art.52(2) of the Convention on the Grant of European Patents: What did the Framers Intend? 36 IIC 755

[edit] Comparing exclusions

To look for insight into how the exclusion on "programs for computers" was intended to be interpreted, we can compare it to the other things excluded and look for a common logic, such as:

  • They're all things that individuals do without necessarily expecting financial return

If this underlying logic is accepted, then developing software for computers must be excluded.

In the UK, the idea that the exclusions contain an underlying logic was rejected by Deputy Judge Peter Prescott QC in 2005.[2]

[edit] Case law

A 25-page appendix in the UK 2006 Aerotel v. Telco ruling focusses on Analysis of the Case Law, including EPC case law.

[edit] Related pages on en.swpat.org

[edit] External links

[edit] References

  1. ↑ http://www.epo.org/patents/updates/2009/20090508.html
  2. ↑ http://www.bailii.org/ew/cases/EWHC/Patents/2005/1589.html (section 21)


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