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Schohe, Stefan; Appelt, Christian; Goddar, Heinz --- "Patenting Software-Related Inventions in Europe" [2009] ELECD 246; in Takenka, Toshiko (ed), "Patent Law and Theory" (Edward Elgar Publishing, 2009)

Book Title: Patent Law and Theory

Editor(s): Takenka, Toshiko

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845424138

Section: Chapter 11

Section Title: Patenting Software-Related Inventions in Europe

Author(s): Schohe, Stefan; Appelt, Christian; Goddar, Heinz

Number of pages: 30

Extract:

11 Patenting software-related inventions in
Europe
Stefan Schohe, Christian Appelt and Heinz
Goddar



1 Introduction
Software-related patents are a publicly debated issue. As far as Europe is
concerned, this issue has a legal side to it. Whereas the public discussion is
largely centered on how to best promote the development of the software
industry and ultimately debates the usefulness of a patent system in general,
rather than specifically software-related patents, the question in Europe is also
whether and to what extent software-related patents fit into the legal frame-
work. A few words on the legal framework may therefore be appropriate.

2 Legal provisions and development of the case law
Whereas there is no common patent law in Europe, the substantive legal provi-
sions on patents were harmonized with the introduction of the European Patent
Convention (EPC) so that for practical purposes it is sufficient to consider the
provisions of the EPC, which are mirrored in the national law of the EPC
member states.
The key provision in this regard is Article 52(1) EPC, which reads as
follows:1

European patents shall be granted for any inventions, in all fields of technology,
provided that they are new, involve an inventive step and are susceptible of indus-
trial application.

Article 52(1) EPC is complemented by Article 52(2) EPC, reading as follows:

The following in particular shall not be regarded as inventions within the meaning
of paragraph 1:
(a) discoveries, scientific theories and mathematical methods;
(b) ...