Software patents in Europe: Can non-technical features establish novelty?

von Bastian Best

European software patents are granted by the EPO for inventions which are novel and involve an inventive step. In the COMVIK decision it was held that inventive step can only be based on technical features, but not on non-technical features. But what about the preceding hurdle of novelty? Is an invention novel if it differs from the prior art only by means of non-technical features?

The technical board of appeal 3.3.08 of the EPO had to deal with this question in decision T 2050/07 (DNA Mixture Analysis/PERLIN) of February 19, 2013. Unfortunately, the question whether a non-technical feature can establish novelty was left unanswered, since the feature in question was eventually considered technical:

From the reasons

3. It is established case law that claimed subject-matter is not excluded from patentability as a non-invention under Article 52(2) EPC for the sole reason that it contains features which might be considered to be non-technical (see opinion G 3/08, OJ EPO 2011, 10, point 10.13 of the Reasons, and decision T 1658/06 of 14 January 2011, point 3 of the Reasons). In the present case, claim 1 as well as dependent claims 2 to 21 are directed to a method of analysing a DNA sample. This method comprises inter alia a step of amplifying the DNA sample, wherein the amplification product produces a signal comprising signal peaks (see step (a)), a step of detecting signal peak amounts and a step of quantifying the amounts using quantifying means that include a computing device to produce DNA length and concentration estimates (see step (b)). Already for the reason that both steps (a) and (b) are obviously performed using dedicated laboratory equipment and devices the claimed method cannot be considered as being devoid of technical character. The Board therefore reaches the conclusion that the subject-matter of none of the claims of the request is to be regarded as a non-invention pursuant to Article 52(2) EPC ...

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