Patenting Software-related Inventions according to the European Patent Convention A review of past and present law and practice

This paper presents a retrospective of the different epochs in patenting software-related inventions in the European Patent Office (EPO). To put things in perspective, it also makes reference to other jurisdictions as well, in particular USA. The emphasis is however on present EPO practice. Three different epochs are presented and the corresponding approaches to dealing with software-related inventions are discussed, also with regard to the applicable case law: the "contribution" approach, the "further technical effect" approach and the present approach (also known as the "Hitachi-Comvik" approach), which is based on differentiation between non-technical features (which do not serve to distinguish the invention from the pre-existing technology in a non-obvious way), and those technical features contributing to non-obviousness of the invention when compared to the preexisting technology. A primer on the structure and function of the EPO and the basic requirements of patenting is included in order to make the text accessible also to non-experts in the field. Past and present landmark case law of the EPO Boards of Appeal is mentioned and briefly explained, but the point of focus is on those decisions that define the present practice. Reference is made to two important developments, the creation of the European patent with unitary effect and the Unified Patent Court. The paper also attempts a brief outlook regarding the possible implications of these developments on patenting of software-related inventions. Keywords—patents; software; software patents; computerimplemented inventions; software-implemented inventions; software-related inventions; CII; unitary patent; unified patent court;