Software patents in Europe: Anything involving technical means is patent-eligible

von Bastian Best

When looking at software patents in Europe one of the fundamental questions is whether a method claim reciting some software functionality is patent-eligible subject-matter. The good news is that – assuming the claims have been properly drafted – software easily overcomes the patent-eligibility hurdle. However, this is not a carte blanche for obtaining a software patent for any software, as this decision illustrates:

Decision T 0258/03 (Auction method/HITACHI) of April 21, 2004 is one of the landmark decisions underlying the current legal framework for assessing the patentability of software-related inventions, issued under the chairmanship of Dr. Stefan V. Steinbrener. The essence of the decision is that subject-matter which uses technical means (e.g., a computer) is generally patent-eligible, i.e., it is an “invention” within the meaning of the European Patent Convention (EPC).

However, as the present decision also illustrates, this does not mean that any patent claim directed to a business method with the additional instruction to “do it on a computer” will be granted a software patent. On the contrary, such claims will be rejected for lacking an inventive step, since features making no technical contribution cannot support the presence of inventive step.

Headnote I

A method involving technical means is an invention within the meaning of Article 52(1) EPC (as distinguished from decision T 931/95-Controlling pension benefits system/PBS PARTNERSHIP) (see points 4.1 to 4.4 of the reasons).

From the reasons

2. The invention according to claim 1 is an “automatic auction method executed in a server computer”. In claim 3 a “computerised auction apparatus” comprising a server computer is defined, and in claim 4 a computer program for carrying out an auction. The features of the claims are closely related and in substance based on the same method steps ...

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