Software patents in Europe: cryptography is patent-eligible subject-matter

von Bastian Best

This decision of November 30, 2010 may be interesting for the cryptography-acquainted reader. While mathematical methods as such are excluded from patentability at the EPO, the question underlying the decision was whether this also applies to the employment of mathematics in cryptography applications:

Catchwords (inofficial translation)

Methods for encrypting/decrypting or signing electronic messages have to be classified as technical methods even though they are based substantially on mathematical methods (reasons no. 7).

From the reasons (inofficial translation)

5. According to established case law the subject-matter of all claims has technical character and is thus in agreement with Art. 52(2) and (3) since it concerns a computer-implemented method (see T 258/03, Hitachi; Headnote 1; Official Journal EPO, 2004, 575; and G 3/08; Reasons No. 10.7).

5.4 The board thus considers it appropriate to examine within its authority under Art. 111(1) EPC 1973 whether the methods of claims 1-4 provide a technical effect that goes beyond the fact that they are computer-implemented.

6. RSA is an asymmetric crypto system which can be used both for encryption and digital signing. It uses a pair of keys consisting of a private key which is used for decrypting or signing data and a public key serving for encrypting or validating of signatures. The private key is confidential and cannot, or only with extremely high efforts, be derived from the public key.

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