9.2.9 Computer programs

For the technical character of computer programs, see also chapter I.A.6.5 "Computer-implemented inventions".

Purely conceptual aspects of software design and development will normally not contribute to an inventive step according to the jurisprudence of the boards of appeal (T 983/10; see e.g. T 49/99, T 1171/06 and T 354/07).

In T 1173/97 (OJ 1999, 609) the board held that a computer program product is not excluded from patentability under Art. 52(2) and (3) EPC 1973 if, when it is run on a computer, it produces a further technical effect which goes beyond the "normal" physical interactions between program (software) and computer (hardware)" (see point 9.4 of the Reasons).

In T 2825/19 the board considered that opinion G 3/08 of 12 May 2010 date: 2010-05-12, when compared to decision T 1173/97, reframed the interpretation of technicality with respect to computer programs. G 3/08 date: 2010-05-12 (Reasons 13.5 and 13.5.1), explicitly rejected the position that any technical considerations are sufficient to confer technical character on claimed subject-matter. Such a narrower interpretation of the term "technical" with respect to computer programs is a normal development for the interpretation of a legal provision open to interpretation (see opinion G 3/19), and this is the case for programs for computers "as such" in Art. 52(2)(c) and (3) EPC. The board saw no support for the appellant's view that the concept "further technical considerations" should be interpreted with a broader meaning that would also cover considerations aiming to solve problems "merely" relating to programming such as maintainability, re-usability and understandability of program code, or, in this case, the use of a universal template for translating natural language into executable expressions in external operational environments. Such a broader view of the concept "further technical considerations" appeared problematic with regard to the imperative to ensure legal certainty and judicial predictability requiring a uniform application of the law (see opinion G 3/08 date: 2010-05-12, Reasons 7.2.3) since no criteria were apparent which could then be used to establish a clear boundary between "technical" and "non-technical" aspects of computer programs.

In T 1370/11 the board stated that the improved speed of a computer program is not by itself a technical contribution to the art (see also T 42/10). In that respect, it must be established that a computer-implemented method or a computer program has a "further" technical effect and solves a technical problem independently of its absolute or relative computing time. Only then, and only if the alleged speed-up affects an established technical effect, can it be argued that the speed-up contributes to a technical effect and thus to inventive step (T 641/00).

In T 354/07 the board stated that conceptual processes and meta methods for software production generally have no technical features relevant for patentability and thus cannot provide a basis for inventive step, unless, in an individual case, a direct causal connection can be proved with a technical effect which is relevant to the solution of a technical problem. Software development and manufacture takes place in several stages from demand analysis through various design phases to production. All these stages essentially involve intellectual activity comparable to an engineer's design work, even if it is supported by programming tools and what is being designed is a technical system. While the design and programming of complex systems in particular require the active involvement of engineers and the application of technical knowledge, the eventual result to which each of these development phases is directly geared is not the technical solution of a technical problem but a requirements specification, a data, process and/or function model, or a program code. This assessment applies in particular to meta methods, which are concerned with the process of software production itself on an even more abstract level. For instance, they give the software developer instructions as to how the design process should be structured and organised or what modelling methods are to be used.

In T 1539/09 the invention related to a graphic programming language and environment that was designed to allow a user to write code without much training or expertise. The board took the view that reducing a programmer's intellectual effort was not a technical effect. This applied all the more since the effect was likewise sought for all programs developed, regardless of their purpose (see T 741/11). The board stated that the activity of programming – in the sense of writing code – is a mental act, at least to the extent that it is not used in an actual application or environment to produce a technical effect. Therefore the definition and provision of a programming language does not per se contribute to a technical solution, even if the selection of a programming language helps to reduce the programmer's intellectual effort (see also T 2270/10).

In T 42/10 and T 1281/10 claim 1 defined a method which, based on outcomes of games, calculated indications of the skills of the players by passing messages between nodes of a factor graph. The board had to determine to what extent the features of the claim had a technical character and could contribute to inventive step. The board referred to the decision of the Court of Appeal of England and Wales in Re Gale's Application [1991] RPC 305. The board's approach to assessing questions of what is and what is not technical about a computer-implemented method was, in this case, to ask the same questions as Nicholls LJ in Re Gale's Application. The first was what does the method as a whole do, and does it produce an overall technical result? The second was; if there is no overall technical result, does the method at least have a technical effect within the computer? If both questions were answered in the negative, no technical problem had been solved and there could be no inventive step. The board's view regarding technicality could be summarised as follows; the overall aim of keeping players interested is not technical. The intermediary aim of assessing and comparing playing performance is not technical. The representation of performance by probability distributions, and the updating of them, are mathematical methods. The use of factor graphs with message-passing is a matter of mathematics or abstract computer science. The board concluded that the only technical feature defined in this claim was the (computer) processor. The subject matter of claim 1, therefore, did not involve an inventive step if it would have been obvious to the skilled person, who had the task of implementing the method, to use a computer processor.

In T 1630/11 a method for simulating a multi-processor system in an electronic device was found to lack inventive step. The appellant had argued that the invention enabled users "to efficiently model and simulate a multi-processor system". The board noted that the major part of claim 1 was concerned with the expressions of a graphical programming environment which were found in T 1539/09 (point 5 of the Reasons) not to contribute to inventive step (see also T 2270/10, point 7 of the Reasons). The board followed its earlier jurisprudence according to which modifications to a programming language or system that enable the programmer to develop a program with greater ease and thus, presumably, speed and accuracy, do not make a technical contribution to the art.

In T 2147/16, the board held that the mere assumption that an algorithm is optimised for the computer hardware and may have a technical contribution is not sufficient. The implementation of an algorithm in a method for filtering spam messages must have a proven further technical effect or specific technical considerations; such further technical effect must be specifically and sufficiently documented in the disclosure of the invention and be reflected in the claim wording; the algorithm must serve a technical purpose.