UK: New EPO Guidelines On Patentability Of Computer Programs

Last Updated: 9 October 2018
Article by Natasha Fairbairn

The Guidelines for Examination at the EPO have been significantly revised with the updated version due to come into force on 1st November 2018. The revisions relate to Computer Implemented Inventions, Inventive Step assessment in Opposition, Unity and more.

While, as the name suggests, the Guidelines do not provide binding precedence for the EPO, they do set out the day-to-day practice to be adopted by examiners. Familiarity with the Guidelines is important for a European Patent Attorney: the Guidelines are the best tool we have for understanding how an examiner is likely to approach an issue and an argument solidly based on their content is unlikely to be dismissed.

In a series of articles, we examine the changes, and how these may impact practice.

Part G, II-3.6

The amended Guidelines provide further clarification of what kinds of subject matter can be regarded as "technical" in the area of computer programs.

Computer programs are only patentable under the EPC if they have a technical character. That is, the computer program must produce a "further technical effect" when run on a computer, beyond the normal physical interactions between the program and the computer on which it is run.

Claims to computer implemented methods and computer-readable storage devices are inherently technical – but still need to overcome the hurdle of inventive step, where it must be shown that the invention provides a technical solution to a technical problem, so the assessment of technicality of features within such a claim is also important. (For example, a non-technical computer program stored on a standard computer readable storage device would not be seen as having an inventive step).

Acceptable "further technical effects" that give a computer program technical character include control of a technical process, or of the internal functioning of the computer itself or its interfaces. The updated Guidelines also give some concrete examples that fall within these definitions.

Examples of technical character

In terms of computer programs that do have a technical character, the Guidelines specifically mention computer programs for controlling an anti-lock braking system in a car, determining emissions by an x-ray device, compressing video, restoring a distorted digital image or encrypting electronic communications as examples of control of a technical process.

For controlling the internal functioning of the computer itself, the examples given are computer programs implementing security measures for protecting boot integrity or countermeasures against power analysis attacks and processor load balancing or memory allocation.

Programs for processing code at a low level (such as builders or compilers) can also have a technical character.

Examples of no technical character

Some explanations of when computer programs do not have a technical character have also been included in the update. For example, the mere fact that a computer program serving a non-technical purpose requires less computing time than a prior art program, does not in itself provide a technical effect.

Furthermore, comparing a computer program with how a human being would perform the same task is not a suitable basis for assessing if the computer program has a technical character.

Conceptual methods describing the process of software development also normally have no technical character.

For example, the Guidelines state that information modelling is an intellectual activity devoid of any technical character typically carried out by a systems analyst in a first stage of software development, to provide a formal description of a real-world system or process. (However if an information model is purposively used in the context of an invention to solve a specific technical problem, it can contribute to the technical character of the invention, and features specifying how the model is actually stored (e.g. using relational database technology) can also make a technical contribution.)

Another example of a non-technical process is writing code. This includes, for example reading a data type parameter from a file as input to a computer program, rather than defining the data type in the program itself and naming conventions for object names for facilitating the intelligibility and the management of program code.

The Guidelines also state that defining a programming language or paradigm (e.g. object-oriented programing) is not generally seen as solving a technical problem and that easing the intellectual effort of a programmer cannot be used as a technical effect.

Data retrieval

A new section on data retrieval has also been added to the Guidelines which sets out in general terms when a computer-implemented data structure or data format has technical character.

A distinction is made between "functional data" which can contribute to a technical effect and "cognitive data" which cannot.

To explain the difference between these two types of data, the example is given of a record carrier for use in a picture retrieval system which stores coded pictures together with a data structure defined in terms of line numbers and addresses which instruct the system how to decode and access the pictures. In this example, the data structure would be functional data, whereas the content of the pictures would be cognitive data.

Practice points

These updates to the Guidelines are to provide clarification of what should already be standard Examiner practice based on established case law, so in theory we should not expect to see any major changes in practice.

It is still the case that the best way to demonstrate that a computer program has technical character is to show that it either controls a technical process or controls some internal functioning of the computer itself (or its interfaces).

However, the examples provided will hopefully provide a clearer definition for both Examiners and patent attorneys as to exactly where the line between technical and non-technical computer programs lies.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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