6.5.5 Patentability of computer programs: technical character

Whereas the view had been taken on a number of occasions in the boards' earlier case law (T 26/86, OJ 1988, 19, T 110/90, OJ 1994, 557, T 164/92, OJ 1995, 305, and T 204/93) that the exclusion from patentability under Art. 52(2)(c) and (3) EPC 1973 applied to all computer programs, independently of their contents, that is, independently of what the program could do or perform when loaded into an appropriate computer, the board in T 1173/97 (OJ 1999, 609) held that, in the context of applying the EPC, the technical character of an invention was generally accepted as an essential requirement for its patentability, as was illustrated, for instance, by R. 27 and 29 EPC 1973. The exclusion from patentability of computer programs as such (Art. 52(2) and (3) EPC 1973) could be construed to mean that such programs were considered to be mere abstract creations, lacking in technical character. The use of the expression "shall not be regarded as inventions" seemed to confirm this interpretation. This meant that computer programs had to be considered patentable inventions when they had a technical character.

Further, Art. 27(1) TRIPS provides that "patents shall be available for any inventions, whether products or processes, in all fields of technology". The board went on to state that it was the clear intention of TRIPS not to exclude from patentability any inventions, whatever field of technology they belong to, and therefore, in particular, not to exclude programs for computers as mentioned in and excluded under Art. 52(2)(c) EPC 1973. The board held that a computer program product is not excluded from patentability under Art. 52(2) and (3) EPC 1973 if the program, when running on a computer or loaded into a computer, brings about, or is capable of bringing about, a technical effect which goes beyond the "normal" physical interactions between the program (software) and the computer (hardware) on which it is run.

The combination of the two provisions (Art. 52(2) and (3) EPC 1973) demonstrated that the legislators did not want to exclude from patentability all programs for computers. In other words, the fact that only patent applications relating to programs for computers as such were excluded from patentability (see T 208/84, OJ 1987, 14 and T 115/85, OJ 1990, 30) meant that patentability could be allowed for patent applications relating to programs for computers where the latter were not considered to be programs for computers as such.