March 1, 2015

Unitary patents and software

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The European Commission acknowledges that the unitary patent is not safeguarded against the granting of software patents by endorsing the EPO teaching:

21. Will the new unitary patent regime facilitate the patenting of computer programmes?

The patentability requirements for European patents with unitary effect are identical to those of “classical” European patents. The envisaged regulation on unitary patent protection does not contain any particular disposition or derogation on the patentability conditions for inventions.

As to the patentability of software, Article 52(2) of the European Patent Convention provides that programs for computers do not constitute a patentable invention. However, patentability is only excluded for programs for computers ‘as such’.

An invention which involves the use of a computer, a computer network or other programmable apparatus, where one or more features are realised wholly or partly by means of a computer program (so called computer-implemented inventions, “CII”) can be patented if it fulfils the strict patentability requirements, in particular, it must have a technical character, be new and make an inventive technical contribution to the knowledge available at the date on which the application was first filed.

At the same time it makes sense to recall the original impact assessment study of the European Commission that suggested swift action of the Commission if one wanted to get rid off software patenting in Europe.