the case for patent protection for computer program-related inventions

Patent Law

PATENT LAW THE CASE FOR PATENT PROTECTION FOR COMPUTER PROGRAM-RELATED INVENTIONS

Robert. J. Hart EPA, CPA, FBCS

Patent systems have been created to stimulate the evolution of existing and the creation of new industry by protecting the industrial application of innovations. The computer software industry needs that stimulation as much as any other industry. All systems of intellectual property protection are available to be used to protect computer programs recognizing their limitations. Copyright does not provide protection for the innovative functional features of a computer program beyond the specific expression of the program code of these features. Trade secrets are subject to contract and have no impact on third parties. The European Patent Office is granting patents, not for computer programs as such, but for computer software-related inventions which meet the requirements of novelty, inventive step, industrial application and make a contribution to the computer industry either in the technical problem to be solved by the invention or in the technical effect achieved by the invention. The vast majority of European patents are being granted to non-European applicants and as a consequence the European Software Industry is likely to find itself being dictated to, by for example Japanese and United States interests, rather than playing its part in the international expansion of the industry. To ignore the existence of patents for computer program-related inventions can only be to the detriment of the future of the European Computer Software Industry.

The Case for Patent Protection for computer program-based inventions

1. Introduction The Patent system plays a significant role in gaining for inventors and their backers the necessary initial monopoly protection for their innovative ideas, allowing these inventions to be brought to the market place and the market place to be developed before competition brings its rewards to consumers. In an article’ by Donald. W. Banner on the patent provision under the US constitution, Edwin Land the inventor and founder of Polaroid was quoted as saying:

“I must emphasize that the kind of company I believe in cannot come into being and cannot continue its existence except with the full support of the patent system.” Edwin Land is further quoted as saying, “The only thing

that keeps us alive is our brilliance. The only way to protect our brilliance is our patents.”

The Patent Reform Committee in its report’ of July 1970 summed up its findings by stating:

Wherever industry has developed, patent systems have emerged and have played an important role in encouraging innovation;

No alternative system for the encouragement and growth of new industry by private enterprise has been established;

National patent systems have been of increasing impor- tance in the worldwide development of technology with resulting benefit to the expansion of international trade.

There is, however, in some circles an unfortunate tendency to associate patented inventions with either major advances in science or with gadgets and gimmicks. Both views are over-simplifications since virtually all machines, products and processes (and individual parts of them) across the industrial spectrum have been the subject of protection by patent, provided they satisfy the criteria for patentability (i.e. novelty, inventive step and industrial application).

The protection of inventions relating to computer programs occupies the border line where rapid technological and economic progress presents a formidable challenge to the patent system. There is an interesting parallel to be drawn with other fields such as the pharmaceutical industry. In the 1950s and early 1960s the chemical industry mainly concentrated on the creation of novel compounds. In Europe the first use of an already known compound was protectable by patent granted for the new medicament. However, a second or further new and inventive use of the chemical substance was not considered patentable even though it contributed substantially to the welfare of mankind in combating a serious disease. This was not the case in the US. The emphasis of protection in Europe was put on the chemical compound. After a period, however, interest shifted partially to research on new and inventive properties of existing medical compounds already tested for side effects. The Enlarged Board of Appeal at the European Patent Office in its landmark decision3 of GR 5/85 of 5 December 1984 opened the door for protection of the so-called second medical use of chemical substances. The ‘intangible’ subject, the use of a substance for making a medicine for a new therapeutic application, was held patentable.

In a similar manner I contend the initial protection of computer hardware, essential to the computer industry in

Computer Law & Security Report Vol. 13 no. 4 1997 0 1997, Elsevier Science Ltd. 247

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the 1970s and 80s is followed by the need to protect software developments which is the application of existing hardware to solve new technical problems.

2. Patentability and Computer Programs Patent protection, however, is specifically excluded in Europe “for computer programs as such”.* It is important to be able to understand clearly what that actually means. Before considering that issue, however, it is important to address the proposition that copyright provides all the protection needed for computer programs. Copyright is not a monopoly right, it protects against the unauthorized reproduction, adaptation or distribution of the expression of the computer program. Independent creation of a program performing the same functional operations is not an infringement of the copyright in an existing program. This is so even if the expression of the two programs is similar. Only unauthorized reproduction of the original program, or substantial parts of it, constitutes copyright infringement. Patents, however, are currently being granted, in Europe for example, for those computer program-related inventions which produce a new technical effect.

2(a) The boundaries of Copyright - What patents do not protect It has become clear, that for intellectual property protection purposes, the term computer program is being viewed as the code listings5 and, as copyright protects the expression of a literary work, such code listings will properly be protected by copyright against unauthorized reproduction etc. For example, as required by GAIT TRIPS (Trade Related Aspects of Intellectual Property Rights) Article 10.(l), computer programs whether in source or object code are treated as literary works in Europe6. Copyright protection, particularly in the United States of America, however, is currently being limited in its extent. It is interesting to note that Article 10(Z) of GATT TRIPS specifically excludes from copyright protection “ideas, procedures, methods of operation or mathematical concepts as such” which is very similar to the exclusions incorporated in Section 102(b) of the US Copy- right Law but without “as such”, whereas the EU Directive only excludes ideas and principles’. The WIPO Copyright Treaty adopted at the Diplomatic Conference on Certain Copyright and Neighbouring Eights Questions at Article 2 adopts the same scope of protection for copyright works as GAIT TIUPS.

I contend that if copyright protection is restricted to the expression of a computer program, (specifically excluding the methods of operation performed by the program), the functions performed by the program when executed, unless protected by another legal regime, will be dedicated to the public’. It is true that a recent UK decision’ can be interpreted to include functional aspects within the ambit of copyright in the UK, but I simply point out that the issues considered in this case occurred before the EU Directive was implemented in the UK and before GATT TRIPS was ratified.

In the light of the above, I hope that I have demonstrated that I do not consider that all program code listings should be protected against copying by patents, that is best left to copyright. I am convinced that copyright will provide the protection necessary to stop the unauthorized reproduction,

248 Computer Law & Security Report Vol. 13 no. 4 1997 01997, Elsevier Science Ltd.

adaptation and distribution of actual program code. What copyright should not do, in my opinion, is provide

monopoly protection for the functional operations performed by the execution of the program. I believe this distinction to be a very important one to grasp. Copyright will be infringed if, without authorization from the copyright owner, the program is executed because under most circumstances electronic reproduction occurs during the running of the program, but that ‘electronic’ reproduction should not extend to protect of the functional operations performed by the program when executed. As identified above for example, Article 5.3 of the Software Directive specifically states:

The person having the right to use a copy of a computer program shall be entitled, without the authorization of the rightholder, to observe, study or test the functioning of the program in order to determine the ideas and principles which underlie any element of the program if he does so while performing any of the acts of loading, displaying, running, transmitting or storing the program which he is entitled to do.

Having identified specifically that the Software Directive, which has been implemented by all EU Member States, permits, in the absence of other forms of protection, the taking of the ideas and principles underlying a program, 1 would submit that the functional features of the program, since they are not protected by the copyright in a computer program, are open to be used by a competitor using an alternative expression of the code which performs the same functional features. The EU Directive of course only applies to the protection of computer programs by copyright” and it specifically indicates” that its provisions are without prejudice to any other legal provisions such as those concerning patent rights.

Additionally, I note with some interest the recent Lotus v Borland” case in the US Court of Appeals for the First Circuit, where the Court held that the menu command hierarchy, although it might constitute expression, was also a method of operation and was, therefore, the court decided, precluded from copyright protection. It is of further interest to me that the court suggested that patent protection might be more appropriate for developments of this type.

Indeed, in the United States since 1992 the trend under copyright has been to restrict its applicability more and more towards literal copying. The US Court of Appeals for the Second Circuit in handing down Computer Associates v Altail established a three-step abstraction/filtration/com- parison test which is to be used in non-literal copying cases to identify what does not constitute copyright infringement. The general move away from wide copyright protection for computer programs was confirmed when the US Court of Appeals for the Ninth Circuit’* held that certain screen displays comprising icons were not protectable by copyright. From the above US cases it seems to me that it is becoming clear that in the US those aspects of programs that effectively implement functions are not protectable by copyright. There appears to be at least one significant issue that follows from this proposition which is that, second comers may be at liberty to copy functional aspects of computer programs which areprobably amongst the most important attributes of a successful program, as long as they are not protected

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by any other legal regime. Having now, in my opinion, clearly identified that

copyright protection either does not, or in the future is likely only at best to allow the specific expression of those functional operations to be restricted so that it does not, protect the functional operations of a computer program, I should like to consider if novel and non-obvious functional operations should be protected at all.

In a symposium held at Columbia University Law School entitled “Toward a Third Intellectual Property Paradigm” a Manifesto”, produced by Professor Pamela Samuelson, Professor Randall Davis, Mitchell D. Kapor and Professor Jerome Reichman, postulated that “Computer Programs Are Not Only Texts They Also Behave”.16

2(b) The need for protection beyond copyright expression The Manifesto makes it clear that ‘text’ and ‘behaviour’ are largely independent and that ‘behaviour’ is valuable and may be both utilitarian and fanciful.

For those aspects of behaviour which are utilitarian (i.e. functional) I contend that the only existing system of protection which can be considered is the patent system. Although the above identified Manifesto proposes the introduction of a third Intellectual Property right based upon anti-cloning it identifies how Patent Law is, in the Manifesto writers’ opinions, Ill-suited to Protecting Software Innovation”. The Manifesto argues that patents have limited application in the protection of the behaviour of computer programs in that patents typically issue for particular methods of achieving results, rather than for the results themselves. I submit that such a limit is no bad thing. To protect the results of the behaviour of a computer program themselves would in my opinion be akin to protecting discoveries and scientific theories. It must, however, be right to permit the application of specific behaviour to achieve an end result to be protected for a limited period to encourage research in to the use of that behaviour.

Effectively the Manifesto considers that there should be (i) copyright protection for the literal expression of the program code, (ii) patent protection for those functional features of the computer program and their application that meet the level of protection required by the patent system and (iii) an anti-cloning system to protect the program behaviour not protected by the patent system. I am interested in what the Manifesto has to say although it seems to me that it is far from proven that the area between copyright and patents requires to be tilled at all.

The US Congress, Office of Technology Assessment in its 1992 publication “Finding a Balance: Computer Software, Intellectual Property, and the Challenge of Technology change”” (hereafter OTA Report) examined the rapid and complex technological changes and trends in computer software technologies and their possible effects on the US intellectual property system. In Chapter 4, under the heading Intellectual Property Protection of Program Function, it has the following to say:-

Existing intellectual property laws are applied to program function in several ways. First, it can be argued that the program function is protected against copying because the implementation is protected by copyright law.

Copyright law prevents others from acquiring the functionality of the programmed computer if it is obtained by copying the ‘expression’ in the program code. However, copyright law does not prevent the independent development of a program that performs the same function.

Some aspects of the function of a programmed computer may be protected by maintaining them as trade secrets. For example, a program may be distributed with contractual restrictions on the extent to which it may be studied. Trade secret protection may also be main- tained (in part) by distribution of the program in machine language, which is difBcult for competitors to understand. This may be a valuable form of intellectual property protection; the scope of protection is the subject of the ‘decompilation’ debate discussed later.

Finally, parts of the function of a program may be protected by patent law. The same program may embody many patentable inventions, or none at all, depending on how many parts of the program function are novel, non- obvious, and statutory subject matter. The inventions are claimed either as a series of functional steps carried out by the computer or as a system capable of performing certain functions. The US Patent and Trademark Office (PTO) emphasizes that patents are granted for the functional steps or the system, not the program code. The above comments encapsulate the position I believe

to be ideal. Patents for the functional aspects of a computer program should always be considered to complement the protection provided by copyright and trade secret.

It is also important to recognize that software and hardware are often interchangeable. To permit the grant of a patent for the hardware Interpretation of a patentable invention but not for its software interpretation, in my opinion borders on the ridiculous.

2(c) What computer program-related inventions should be patented? I consider that patents should protect inventions not all innovations. I make this distinction to highlight that patents should only be granted on innovations which have reached the required standard of invention, set for example by the European Patent Convention”. I fully endorse the comments in the OTA Report where the US Patent and Trademark Office emphasise “that patents are granted for functional steps of the system, not the program code”. Implicit in these comments is that Innovations that do not reach the required standard of patentable invention should not be protected by the patent system and maybe should not be protected at all beyond that provided by copyright.

2(d) The Position at the European Patent Office The European Patent Convention has been administered by the European Patent Office for some 20 years and during that time a set of examination guidelines have evolved from Appeal Board case law and practice in the examination division of the European Patent Office.

The current general line of practice at the European Patent Office is to interpret the computer program as such exclusion of Articles 52(2) & (3) in accordance with the


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Guidelines for Examination and the Boards of Appeal Decisions to allow patentability of subject matter which makes a technical contribution to the known art, even if computer programs are involved. The following rules have been identified by Mr Anton S. Holzwarth, Director in Directorate General 2 of the European Patent Office, as the basic examination rules:- 1.

2.

3.

4.

5.

A computer program claimed by itself or as a record on a carrier is not patentable, irrespective of its content. The situation is not normally changed when the program is simply loaded into a known computer.

If, however, the subject matter claimed makes a technical contribution to the known art, patentability should not be denied merely because a computer is involved in its implementation. For instance, see Decision T208/B4 (VICOM), a technical contribution can normally be assured if the subject matter claimed concerns treatment or manipulation of coded and stored representations of real physical entities i.e. image processing, computer simulation of technical structures or processes, computer simulation of neural networks. Indications of a technical contribution can further be seen, if analogies to real technical products or methods are identifiable e.g.

(a) an improvement concerning the man-machine inter- face of a computer system used as a working tool would be an analogy to an improvement of any mechanical tool like a hammer;

(b) training of a neural net can be seen as an analogy to calibration of an electronic device or of a measure- ment means;

(c) a set of weights in relation to the structure of a neural net used e.g. for pattern recognition would be an analogy to a formula representing an optical structure or system;

(d) an improvement in the organization of data representing knowledge in a rule-based system resulting in more efficient processing or faster access could be seen as an analogy to an improvement in the organization of a mechanical or chemical process resulting in higher efficiency ratio.

My understanding of the position taken by the Technical Boards of Appeal in the European Patent Office is that the use of technical means (e.g. a conventional computer) to carry out a claimed process is not sufficient in itself to render a process, which in essence is a computer program, patentable. A computer program is not considered part of a technical operating procedure if the claimed teaching merely modifies the data and produces no effect beyond information processing. However, if a contribution to the computer art can be found either in a technical problem to be solved, or in a technical effect achieved by the solution, the mix of technical and non-technical features may be patentable,*’ together with those inventions where technical considerations are to be made concerning the particulars of its implementation*‘. I endorse this as the criteria to be used to establish patentability for computer program-related inventions.

2(e) Why are computer programs as such excluded? Gunter GalI - Director Legal Affairs European Patent Office, Munich, in a paper given at the OFDJ Seminar on 17 April 1985 in Paris in introducing the ‘new’ guidelines for examination in the European Patent Office specifically identified that:

“Neither the first draft for a European Patent Convention, which dates from 1962, nor the Strasbourg Patent Convention of 1963 contains a separate provision excluding computer programs. It was only the second preliminary draft for a European Patent Convention dating from 1971 which explicitly excluded computer programs from patentability in line with Rule 39(l) PCT22. Before being adapted to the EPC, numerous national patent laws incorporated no special grounds for exclusion in relation to computer programs. Never- theless, the patentability of computer programs was denied by case law in these countries.”

Gunter Gall continues as follows:

“Of particular interest in this connection is the Stras- bourg Patent Convention, from the provisions of which the substantive elements of the law of patentability as set out in the EPC were derived. There is no indication in the EPC travaux preparatoires that the listing of non- patentable inventions in Article 52(2) EPC was intended to represent a departure from the Strasbourg Convention. The fact that a considerable number of the Contracting States of the EPC ratified the Strasbourg Patent Conven- tion after ratifying or acceding to the EPC proves that these States assumed that the two Conventions tallied with one another in all respects.

The main reason why computer programs are excluded from the range of patentable inventions is therefore to be found in the concept of the Invention, which grew out of national traditions and forms the basis of the EPC. Even if programs for computers were not explicitly excluded from patenting by Article 52(2) EPC, European patents could not be granted in respect of them because they do not constitute a patentable invention as defined in Article 52( 1) EPC.”

Having reviewed the legal history Herr Gall reaches the following conclusion:

“The reason for the exclusion of programs for computers as such is that, like discoveries, scientific theories, mathematical methods and presentations of information, they are not of a technical nature. Patentability requires a specific technical application,

To summarize, therefore, it can be said that the special provisions excluding programs for computers is only of a declaratory nature, i.e. merely affirms something which could already be deduced from Article 52(l) EPC itself. This means that the answer to the question whether computer programs could be patentable in the absence of any explicit exclusion is ‘no’. From this we then also derive the answer to the question whether computer programs are subject to the general rules of patent law. which is of special significance for the practical application of the provision. The answer is in the affirmative. Inventions which relate to computer programs or in which such programs constitute an essential element are


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subject to the general rules of patent law. Thus in the case of inventions relating to programs for computers the relevant question is whether the invention is of a technical nature.”

2(f) Policy issues The OTA Reportz3 includes a section in Chapter 424 on the “Protection of Program Function - ‘Software Patent’ Policy Issues”. In this section the opposing views are expressed indicating that (a) no inventions that use software, or that only software related inventions that are traditional industrial processes, should be patentable and (b) inventions that use software should not be treated differently from other types of invention. I clearly support the second view. The OTA report goes on to identify25:

“Some of the concerns about the patenting of inventions that use software are similar to those expressed about the patent system in general or about the patent system’s ability to accommodate any new technology.” Amongst the questions raised are the “fact that patent

applications are kept secret until the patent issues makes it impossible to be certain that a product under development will not be accused of infringing a patent: this ‘landmine’ problem may be exacerbated by the longer pendency for computer related inventions”. In the European Patent system, as indeed is now the case in the US, the Patent Application documents, together with the search report are published 18 months after the priority date of the application, thus the ‘landmine window’ is only 18 months. Further the European Patent system, at Article 115, introduces a procedure by which “any person may present observations concerning the patentability of the invention”. Any one who takes advantage of Article 115 provisions could address the second of two areas of concern identified in the OTA Report - “The quality of patents that have issued”. The perceived problems with examination quality the OTA Report identifies “have primarily been the result of the long period of time during which it was uncertain whether software-related inventions were patentable”. This leads to gaps in the Patent Office database of prior art. Indeed the industry has set up the Software Patent Institute based at the University of Michigan for the purpose of providing the US Patent Office and others with as comprehensive a data base of known software as is possible.

Finally under Policy the OTA Report posed the thesis that “widespread use of patents could change the structure of the software industry that would actually reduce the rate of innovation”. Two views are expressed in the OTA report. Suffice it to say I support the following:

The alternative view is that the economics of the software industry is not that different from the economics of other industries, and that patents are therefore equally appropriate for encouraging software development. Some argue that software development is becoming increasingly expensive, and patents may provide the incentive needed to invest or attract venture capital funding. In addition, it may be that patents in fact benefit small companies, by providing a means to protect their development effort against appropriation by a larger company.

This latter comment appears to be well founded when one considers the recent involvement Microsoft have had with Stat Electronics on data compression.

2(g). Patents and Trade Secrets Before summing up I feel that I should deal with a further misconception which is expressed as follows:

Patents for inventions embodied in computer programs are not required because programs are distributed in object code form and, therefore, the ideas and concepts which would only be revealed by having a copy of the source code can be kept as a trade secret.

With the advent of reverse-engineering tools together with the provisions of Article 5.3 of the European Union Directive on the Legal Protection of Computer Programs I believe this position is no longer sustainable in all cases. Those functional features that are revealed when the program is executed or are discoverable using reverse- engineering are open to mis-appropriation. Trade secrets can only be enforced by contract and will have no effect against third parties independently discovering those trade secrets. Only the patent system can protect the industrial application of ideas and concepts. Trade secrets, patents and copyright should all be used as appropriate to protect the investment in a new computer program.

3. Conclusion I hope by now I have laid to rest the misapprehension that computer programs as listings or sequences of instructions as such can, or even should, be protected by the patent system. The fact that a computer program is involved in an invention is no bar to the patentability of the invention. The primary requirements for patentability for example at the European Patent Office may be listed as follows for all inventions:-

1. Absolute novelty 2. Inventive step 3. Technical character (thus excluding:-

abstract and non-technical teaching, - scientific theories, mathematical methods, - methods performing mental acts, playing games or

doing business and

- programs for computers etc.)

4. Industrial application In summing up it can be stated that inventions which

relate to computer programs or in which such programs constitute an essential element are and should continue to be subject to the general legal rules for the patentability of inventions.

An important corollary of this statement is that when considering patentability those features of an invention which relate to a computer program should not be disregarded, but should also be considered in accordance with the general rules relating to the patentability of inventions. The same must apply to this as to cases where a discovery is put into practical use. A division into patentable and non-patentable elements of an invention


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conflicts with generally accepted principles. Gunter Gall in his article identMes that “the European Patent Convention does not stipulate that certain elements must be left out of account when an invention is assessed”.

Article 52(3) EPC excludes the subject-matter or activities referred to in paragraph 2 from patentability only “as such”. But if the subject-matter for which protection is sought is of a technical nature overall the whole of it will be patentable if it meets the requirements of novelty and inventive step.

granted monopoly status until a regulatory authority has examined the documents requesting that monopoly and

To deny patent protection for such inventions would I believe remove from the patent system a significant industry thereby severely disadvantaging the innovators in that industry encouraging second comers rather than original creators upon whom any industry relies heavily for its evolution. So far I believe no viable alternative to the patent system has been invented and the comments made by the Patent Reform Committeez6 still hold good. There is, I submit, a need to protect inventions relating to the functional operation of computer programs and the sui generis systems so far proposed do not in my opinion provide realistic alternatives to the patent system. If inventions relating to the functionality of computer programs are to be protected by a legal system it is paramount that, (i) the rest of the interested world knows at an early stage what the invention is and how to achieve it, (ii) interested third parties can make observations on the protectability of the invention, (iii) the invention is not

established its novelty and inventive step and (iv) once the examination is complete interested parties may oppose the granting of the monopoly. These are of course the specific facilities provided by for example the European Patent Convention. What now is important is to ensure that the same standards of patentability are used internationally to prevent distortion of the international market for computer program products and that the standards of examination are of the highest calibre.

The adoption of GA’IT TRIPS Article 27.1 requires those countries ratifying the agreement to provide that “patents shall be available for any invention whether products or processes, in all fields of Technology” (emphasis added). This may well set the standard internationally ensuring that patents for the inventions embodied in computer programs are available almost globally.

D-m-~ ~~~~-~-

Robert J. Hart, Report Correspondent

My final message is then that all aspects of intellectual property should be used to protect the investment in a computer program and that patents are being granted now for the functional aspects of computer programs by the European Patent Office as long as they meet the requirements for patentability and are of technical effect. It is to the detriment of the European Software Industry, I believe, that the vast majority of those patents are held by Japanese and US Corporations. This unfortunate position is by no means exclusive to computer program-related inventions as a recent EPO Report2’ shows and this in my opinion requires urgent redress.

Footnotes ‘Donald. W. Banner “An Unanticipated, Non obvious, Enabling Portion of the Constitution: The Patent Provision - The Best Mode” Journal of the Patent and Trademark Office Society, November 1987. ?he British Patent System, Report of the Committee to Examine the Patent System and Patent Law July 1970, HM Stationery Office, London, Cmnd 4407. 30fficial Journal of the EPO 3/85 p. 63. *European Patent Convention Article 52 2(c) and (3). 5See US Copyright Law definition. A ‘Computer program’ is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. 6Article 1.1 of the EU Directive on the Legal Protection of Computer Programs (hereafter Software Directive). ‘Article 1.2 of the Software Directive. ‘See Article 5.3 of the Software Directive. ‘IBCOS Computers Ltd v David Brian Poole [1994] FSR 275. “See Article 1.1 of the Software Directive. “See Article 9.1 of the Software Directive. 12Lotus Development Corporation v Borland Intema- tional Inc. 49F 3d 807, 34 USOQ 2d 1014. ‘3Computer Associates International Inc. v Altai 982 F 2d 693 (2nd Cir 1992). “Apple‘Computer Ihc. v Microsoft Corporation, 25 F 3d

1435, 32 USPQ 2d 1086 (9th Circuit 1994, cert denied, 1155 Ct 1176 (1995). 15A Manifesto Concerning the Legal Protection of Computer Programs - Columbia Law Review, Vol. 94 Dec. 1994 No. 8. ‘kid page 2316. “Ibid page 2343. ‘sOTA-TCT-527 (Washington DC; US Government Printing Office; May 1992). “European Patent Convention Articles 52 to 57. “See Case T38/86. 2’See Case T769/92. 2239.1 Definition. ~~ No International Searching Authority shall be required to search an international application if, and to the extent to which, its subject matter is any of the following: (i) scientific and mathematical theories (ii) schemes, rules or methods of doing business, performing purely rental acts or playing games (vi) computer programs to the extent that the International Searching Authority is not equipped to search prior art concerning such programs. 23See ref. 17. 241bid pp. 135 - 138 251hid at p. 136. 26See ref. 2. 27Utilization of Patent Pr&ection in Europe - EPO script 3.

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the case for patent protection for computer program-related inventions

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