The long and winding code – a short history of European software patentability through the lens of pop culture
We’re taking you on a journey through the history of software patents in Europe, through the lens of pop culture. By zooming out and looking at the big picture of what the EPO has taught us over the years, we’ll be building up a clear vision on what you need to do to improve the success of your software patents at the EPO. At each step along the way through history, we’re stopping to see a case where the EPO redefined the law in a way that is still applied today.
As we saw from our first instalment from 1977, “European software patentability: A new hope”, software patents looked doomed from the start in Europe due to the explicit exclusions provided in the newly agreed statute, the European Patent Convention (EPC).
We had to wait some time to see change – in fact, we had to wait until the year that Mick Dundee was showing those New York hoodlums what a real knife looks like. At the same time, the EPO was finally being shown what a real software invention looks like, and luckily the EPO liked the look of it.
Instalment II: That’s not technical, this is technical
The year was 1986 and the case was Vicom. This was a critical turning point for software patents in Europe because the EPO concluded that computer programs, and in fact any of the exclusions from patentability set out in the EPC, were “not excluded if technical”.
The patent system can be traced back to the protection of technical innovations in Ancient Greece, then 15th century Venice, before being formalised and truly exploited in 16th century France and England, arguably being a key stimulus for the onset of the industrial revolution. From this historical backdrop, the idea that inventions could be patentable if technical was nothing new at all, in fact Vicom simply applied this context to the case. Whilst not a ground-breaking concept, the fact it was applied by the EPO meant that patent attorneys of 1980s Europe specialising in computer technologies certainly had a good reason to raise their glass of Beaujolais Nouveau because their careers were transformed by this positive decision forever.
The invention itself related to a pretty complex mathematical method for processing image data by use of two-dimensional data arrays. However, as we learnt in “European software patentability: A new hope”, in Europe there are explicit exclusions in statute (in Article 52(2) EPC, to be precise) of “programs for computers”, “presentations of information”, “methods for doing business”, “mental acts” and “mathematical methods”. Hence, on the face of it, whilst a technical advancement, and a practically useful invention, it looked to be excluded as being a “mathematical method”. However, the EPO thought otherwise, and in doing so laid out a path for software patents to be granted in Europe for the decades to follow. In particular, the EPO stated:
“Digital filtering in general and digital image processing in particular are "real world" activities that start in the real world (with a picture) and end in the real world (with a picture). What goes on in between is not an abstract process, but the physical manipulation of electrical signals representing the picture in accordance with the procedures defined in the claims. There is no basis in the EPC for treating digital filters differently from analogue filters. The appellants have thus made a new and valuable contribution to the stock of human knowledge and patent protection for this contribution cannot be denied merely on the basis that the manner in which the invention is defined would appear to bring it within the exclusions of Article 52(2) EPC [i.e by virtue of being a mathematical method]”
It then went on to state that:
“The Board, therefore, is of the opinion that even if the idea underlying an invention may be considered to reside in a mathematical method a claim directed to a technical process in which the method is used does not seek protection for the mathematical method as such.”
The case therefore set a hugely important precedent that those inventions arguably excluded by statute such as mathematical methods and programs for computers can be patentable in Europe if they form part of a technical process.
In addition to the landmark teaching of how to get software patents granted in Europe provided in Vicom, the decision used some interesting words. The beady-eyed amongst you may have noticed in the first extract from the decision above the phrase “abstract process” is used to define whether or not the invention might be patentable at the EPO. One has to ask, could these words have impacted patent law beyond European shores?
So not only did Vicom mark a new hope for software patents in Europe by providing a clear path for technical processes carried out under the direction of a computer being patentable, it also threw out the idea of whether or not a process is “abstract” or not, a phrase that has been feared, loathed and puzzled over by many a US patent practitioner since its critical use in the US Supreme Court’s decision, Alice Corp. v CLS Bank.
This all raises the question, did 1986 mark the year we saw the most important Decision in the history of software patents, not just in Europe, but globally?