The EPO would beg to disagree.
The official position is that software "as
such" is not
patentable. Therefore you just have to get around that by
reciting a computer loaded with that software, and suddenly you
are not
patenting software "as such". The EPO, and the patent
offices of many (but not
all) European countries, will happily
grant you the patent.
Furthermore,
sometimes physical effect comes into the play.
The EPO considers the
arrangement of electron flows inside the
computer's CPU sufficient physical
effect.
Another really weird argument is that which allows you to
patent a
storage medium with some software on it. To get a
patent, it needs to be a)
novel and nonobvious; b) technical in
nature (this possibly doesn't
mean what it seems to
mean, but that it needs to be something... physical, or a
process). But in EPO's opinion it's enough that the stored
software is novel
while it's not physical, and that the storage
medium is physical while it's not
novel. That's right - the
novelty and the physicality need not be in the same
place.
If you are not confused enough yet, sometimes the results of
national courts kind of filter into the interpretations (but
generally only if
it's good for software patents). I remember one
case where a national decision,
which I think allowed a certain
software patent, was so confusing that it
caused some head-
scratching. While the decision itself allowed software
patents,
the resulting position paper (in an EPO query to member nations
as to
how patent law should be interpreted re: software patents)
was simply so
utterly confused that it's hard to say whether it
was for or against software
patents in general.
The paper in question, by the UK, argued something like
this
(and it might well be that the author understood it made no
sense, but
was obligated to follow the high court):
Software should generally not
be patentable, unless it
transforms the computer in some useful way, like
making it run
faster or freeing up more memory for programs.
Now
that's wrong on so many levels it's hard to know where to
begin...
But to
recap, unfortunately, software patents are a reality in
(at least
most of the)
EU. You have been misled. [ Reply to This | Parent | # ]
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