Software patents in Europe: 7 principles for the patentability of software inventions

von Bastian Best

The decision T 0154/04 (Estimating sales activity/DUNS LICENSING ASSOCIATES) of November 15, 2006 is one of the landmark decisions when it comes to the patentability of software inventions at the European Patent Office.

During oral proceedings the appellant submitted the following questions for referral to the Enlarged Board of Appeal:

  • (1) What is the correct approach to adopt in determining whether an invention relates to subject matter that is excluded under Article 52?
  • (2) How should those elements of a claim that relate to excluded subject matter be treated when assessing whether an invention is novel and inventive under Articles 54 and 56?
  • 3(a) Is an operative computer program loaded onto a medium such as a chip or hard drive of a computer excluded by Article 52(2) unless it produces a technical effect, if so what is meant by “technical effect”?
  • 3(b) What are the key characteristics of the method of doing business exclusion?
  • (4) Is a system for estimating product distribution for non-reporting outlets based on weighing factors that are a function of the distance between the non-reporting outlets and sample reporting outlets and the characterisation, e.g. size, of the non-reporting and reporting outlets of a technical nature?
  • 5(a) Are the exclusions of Article 52 to be treated differently from each other in the way that obviousness is assessed?
  • 5(b) Are inventions alleged to be within Article 52 to have a different test for obviousness than other inventions not alleged to be within Article 52?

In answering these referral questions the Technical Board of Appeal 3.5.01 under the chairmanship of Dr. Stefan V. Steinbrener illustratively summarized the patentability requirements for software-related inventions:

From the reasons

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