The meaning of the term ‘technical’ in software patenting

Patents: One of the key arguments in favour of the new EU software patenting directive as it’s currently worded, from the ‘pro’ side, is that it doesn’t ‘allow software patents as such’, since it requires a ‘technical’ inventive step for a patent to be considered valid.

Various MEPs have tried to clarify the meaning of this vague phrase, but without luck so far.

Coverage has mostly noted this as meaning that ‘pure software’ patents are not permissible, for example this Washington Post article,,and InformationWeek.

But is this really the case, in pragmatic terms? What does a ‘technical inventive step’ mean to the European Patent Office?

Well, it doesn’t look at all promising, according to this report from the Boards of Appeal of the European Patent Office from 21 April 2004, dealing with a Hitachi business method patent on an ‘automatic auction method’. The claims of that patent application (97 306 722.6) covered the algorithm of performing an auction over a computer network using client-server technology. The actual nature of this patent isn’t important, anyway — but what is important is how the Boards of Appeal judge its ‘technical’ characteristics.

The key section is 3.7, where the Board writes:

For these reasons the Board holds that, contrary to the examining division’s assessment, the apparatus of claim 3 is an invention within the meaning of Article 52(1) EPC since it comprises clearly technical features such as a “server computer”, “client computers” and a “network”.

So in other words, if the idea of a computer network is involved in the claims of a patent, it ‘includes technical aspects’. It then goes on to discuss other technical characteristics that may appear in patents:

The Board is aware that its comparatively broad interpretation of the term “invention” in Article 52(1) EPC will include activities which are so familiar that their technical character tends to be overlooked, such as the act of writing using pen and paper.

So even writing with a pen and paper has technical character!

It’s a cop-out, designed to fool MEPs and citizens into thinking that a reasonable limitation is being placed on what can be patented, when in reality there’s effectively no limits, if there’s any kind of equipment involved beyond counting on your fingers.

The only way to be sure is to ensure the directive as it eventually passes is crystal clear on this point, with the help of the amendments that the pro-patent side are so keen to throw out.

(BTW, I found this link via RMS’ great article in the Guardian where he discusses software patenting using literature as an analogy. recommended reading!)

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