Software patents in Europe: Non-technical features cannot support inventive step

von Bastian Best

The allowability of software patents in Europe regularly hinges on the requirement of an inventive step. This is because under the EPC, inventive step can only be established by those invention features which provide a technical difference over the prior art – while purely non-technical features are disregarded:

Decision T 0641/00 (Two identities/COMVIK) of September 26, 2002 is probably the most important decision underlying the current legal framework for assessing the patentability of software-related inventions in Europe, issued under the chairmanship of Dr. Stefan V. Steinbrener. The essence of the decision is: it is ok to have a claim with a mix of technical and non-technical features, however, inventive step can only be based on the technical features of the invention.


I. An invention consisting of a mixture of technical and non- technical features and having technical character as a whole is to be assessed with respect to the requirement of inventive step by taking account of all those features which contribute to said technical character whereas features making no such contribution cannot support the presence of inventive step.

II. Although the technical problem to be solved should not be formulated to contain pointers to the solution or partially anticipate it, merely because some feature appears in the claim does not automatically exclude it from appearing in the formulation of the problem. In particular where the claim refers to an aim to be achieved in a non-technical field, this aim may legitimately appear in the formulation of the problem as part of the framework of the technical problem that is to be solved, in particular as a constraint that has to be met.

From the reasons

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