The Patentability of Computer Programs in Europe: An Improved Interpretation of Art. 52 (2) and (3) EPC.

After the introduction we discuss the European Patent Convention (EPC) provisions that are
relevant to the exclusion from patentability of computer programs and the broader relevance
of the fact that the European Patent Office's (EPO's) Enlarged Board of Appeal has recently
been requested by the EPO President to interpret these provisions. Next, we comment on the
relevance of the recent EPC revision, before addressing what a computer program must be
taken to mean for the purposes of the exclusion from patentability. After drawing attention
to the conflict in case law that has developed in relation to the patentability of the computer
programs and briefly summarizing the different approaches the EPO has taken to Article 52
of the EPC, we explain the evolution of these approaches, with particular attention to the
EPO's dominant ''technical character'' approach. Subsequently, we address the questions put
to the Enlarged Board and how they might be answered. We set out our proposal for what we
believe is the approach the Enlarged Board should adopt. Since this approach might have
effects beyond the field of computer programs, we show that the EPO case law outside
computer programs would not be altered by our approach. Two alternative approaches are
then critically addressed before setting out our conclusion.

Publication year:2009

Keywords:patentability, computer programs, Europe