When it comes to software patents in Europe, there is confusion among companies as to what is and is not patentable under European law, as Reinhard Knauer explains.
The confusion surrounding business method patents and, in more general terms, software patents (called ‘computer-implemented inventions’ in the European Patent Organisation’s (EPO) official terminology) becomes apparent from the fact that Amazon’s 1-Click patent application is considered to be the most prominent representative of the species, despite not even remotely claiming a business method.
This application, which is cited in almost every article related to business method patents, was rejected by the EPO at first instance. An appeal is pending at the Boards of Appeal. A quick look in the file history reveals that the application was always considered by the EPO to claim technical, and therefore patentable, subject matter. The rejection in the first instance was due to prior art.
The above example shows the great uncertainty present in this field. While the Boards of Appeal of the EPO have achieved what no national office achieved previously—the development of case law that can be easily understood and applied by examiners in their daily work—it is nonetheless evident that the public and applicants have not fully followed case law developments, resulting in a lack of understanding of the current practice.
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Software, business method, patents, Europe, EPO