Are Computer Programs And Business Methods Patentable Under European Patent Law? (Part I).Although the United States Patent and Trademark Office The United States Patent and Trademark Office (PTO or USPTO) is an agency in the United States Department of Commerce that provides patent protection to inventors and businesses for their inventions, and trademark registration for product and intellectual property generally accepts computer programs and business methods as patentable subject under US patent law, its counterpart the European Patent Office (the "EPO EPO see erythropoietin. EPO Erythropoietin, see there ") holds a very different view. With the rapid development of computer and information technology, many computer programs and business methods have been invented so that the business transactions can be implemented by software programs, reducing human labour, for example, automatic billing system and pension benefit system. The EPO has clarified the situation with respect to inventions in computer programs or business methods in some recent appeal cases. The General Rule According to according to prep. 1. As stated or indicated by; on the authority of: according to historians. 2. In keeping with: according to instructions. 3. Article 52(1) of the European Patent Convention The Convention on the Grant of European Patents of 5 October 1973, commonly known as the European Patent Convention (EPC), is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to which European patents (the "EPC (1) (Entertainment PC) See HTPC. (2) (Electronic Product Code) A standard code for RFID tags administered by EPCglobal Inc. (www.epcglobalinc.org). "), "European patents shall be granted for any inventions which are susceptible of industrial application, which are new and involve an inventive step." However, Articles 52(2) and 3 EPC explicitly exclude "business method" and "computer program" as patentable invention "only to the extent to which a European patent application relates to such subject matter or activities as such". What is "as such"? According to the Decision of the Technical Board of Appeal of the EPO (Computer program product II, IMB IMB International Mission Board IMB Irish Medicines Board IMB International Maritime Bureau IMB Institute for Molecular Bioscience (Brisbane, Australia) IMB IndyMac Bank (Pasadena, CA) , case no. T 0935/97-3.5.1), the meaning of the words "as such" may be construed as such invention lacking in technical character. Hence, an invention having technical character should be considered patentable. What is "technical character"? An invention which brings about a further effect or solves a technical problem is considered having a technical character. In particular, the invention should use some technical means for carrying out a method. Having said that, it is concluded in the Appeal Decision of the EPO (Pension Benefit Systems Partnership, case no. T931/95-3.5.1) that although a method only involving economic concepts and practices of doing business is not patentable, an apparatus constituting a physical entity for carrying out such method can be patentable. In other words Adv. 1. in other words - otherwise stated; "in other words, we are broke" put differently , if the method is capable of being run on an apparatus, for example, a computer or a machine, the apparatus is considered to have "technical character" and is patentable. As a result of that case, the threshold for patentability has been substantially lowered Inventive Step A patentable invention also needs to fulfill the novelty requirement and involve an inventive step. Although the patentability threshold is now lowered, it is still not easy to fulfill the requirement of inventive step. In the next issue of newsletter, we shall discuss the current view of EPO on inventive step regarding computer programs and business methods. IMPORTANT: The law and procedure on this subject are very specialized and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors. Mr Ludwig Ng Or Ng & Chan 15/F The Bank Of East Asia The Bank of East Asia Limited (Traditional Chinese: 東亞銀行有限公司) HKSE: 0023 often abbreviated to BEA Building 10 Des Voeux Road For former name of a road in eastern Tsim Sha Tsui, see . Des Voeux Road Central and Des Voeux Road West are two roads on the north shore of the Hong Kong Island, Hong Kong. They were named after the 10th Governor of Hong Kong, Sir George William Des Vœux. Central HONG KONG Hong Kong (hŏng kŏng), Mandarin Xianggang, special administrative region of China, formerly a British crown colony (2005 est. pop. 6,899,000), land area 422 sq mi (1,092 sq km), adjacent to Guangdong prov. Click Here for related articles (c) Mondaq Ltd, 2007 - Tel. +44 (0)20 8544 8300 - http://www.mondaq.com |
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