Although both, the UK and the EPO exclude software per se from being patentable, respectively, differences with regard to computer-implemented inventions are found in the definition to come under the patentability as well as the test therefore under the respective law. In the UK, the Aerotel/Macrossan decision established a four-stage test for the patentability, whereas at the Appeal Court the main issue was the whether the invention revealed a technical contribution to the state of the art, and the CoA declined to follow the EPO case law.
The EPO practices a flexible interpretation of the patentable inventions definition in the scope of formulation to allow patentability, in particular to programs for computers as such, and in all fields of technology. In respective case law this flexibility precept along with decision in T 1173/97 IBM showcases the liberal stance, that a claim to a computer implemented method or a computer program on a computer-readable storage medium will never fall within the exclusion of claimed subject-matter.
In Japan, software related inventions are patentable if such an invention can be defined as being a creation of technical idea utilizing laws of nature. Therefore, such as business method per se, computer programming language itself and gaming rules are non-statutory inventions. Although the Japanese Practice gives guidance for formulation of claim preambles which make the wording meet this requirement, it remarkable that non-statutory inventions are to be rejected if insufficiently utilizing the law of nature which is not required in statutes for the any other trilateral patent systems.
In my humble opinion, software inventions are a good thing also long as they confined within the strong containment of technological contribution. Thus, from evolutional view, with marriage of software and hardware in modern technology, software has established itself as quid pro quo related subject matter.
Nevertheless, there is ample room for discussion how deal with software with low or none technicality. Some scholars suggest a sui generis system with lower monopoly terms seems to be most effective, and I agree thereto since it clears the patent thickens and lives up to reality of short life cycle products.
The bivalent value of software in the field intellectual property to combine the creation of authorship with regard to the literacy value from its source code with the functional character thereof when the source code is compiled and executed on a computer makes software a unique subject matter.
Andres Guadamuz,eThe software patent debate' (2006) 1 3 Journal of Intellectual Property Law & Practice pp 196-197
ibid supra note 2 p 207
EPC Arts. 52(2)(c) 52(3); UK Patent Act 1977 Section 1(2)
such as restrictions to patentable subject matter, requirements for novelty and inventive step in order to obtain allowance for a limited monopoly to work and exploit an invention;
Directive 96/9/EC of the European Parliament and of the Council of the European Union of 11 March 1996 on the legal protection of databases [1996] OJ L77/20 enacted by statutory instrument in the UK Data Protection Act 1998 (DPA) that was amended in many important respects by the UK Data Protection Act 2003;
Aerotel/Macrossan [2006] EWCA Civ 1371; Aerotel Ltd v Telco Holdings Ltd [2006] EWCA Civ 1371; [2007] 1 All E.R
EPC Arts. 52(2)(c) 52(3)
EPC 2000 Art 52(1) in line with TRIPs. Art 27
Paul Cole, ePatenting computer-implemented-inventions (CIIs) in the EPOf (Patentlyo Patent Law blog, 13 May 2010) <http://www.patentlyo.com/patent/2010/05/patenting-computer-implemented-inventions-ciis-in-the-epo.html> accessed on 09 Oktober 2013
JPO Examination Guidelines; Chapter 1 Computer Software-Related Inventions; Examples for successful Claims <http://www.jpo.go.jp/tetuzuki_e/t_tokkyo_e/Guidelines/7_1.pdf> accessed on 10 October 2013
JPO Examination Guidelines; Chapter 1 Computer Software-Related Inventions <http://www.jpo.go.jp/tetuzuki_e/t_tokkyo_e/Guidelines/7_1.pdf> accessed on 10 October 2013
Japan Patent Law, main paragraph of Art. 29(1)
Unique Japanese Patent Office Practice: Software Related Inventions
< http://www.jpaa.or.jp/english/patent/unique_jpo_practices.html#subcontents4 > accessed on 10 October 2013
Software, e.g. in control systems technology, completely absorbed the field of cam plates for control system engineering that was inventive subject matter at time when computers were not able to perform control methods for mechanical systems.
Richard Stern, 'Chapter 13: Sui Generis Protection of Software ' (Cases and Materials) Computer Law 484 <http://docs.law.gwu.edu/facweb/claw/ch-13.htm> accessed on 11 October 2013
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dxb625 (student)
![Consider the idea of inventions the commercial exploitation of which would be contrary to ordre public or morality. [EPC2000, Article 53(a)] Contrast these types of patent subject matter with other related subject matter which has been found to be patentable. Where do the borders of morality/immorality seem to lie in current law?](https://mbt-essays-prod-public.s3.eu-west-1.amazonaws.com/1212315/listing/1212315_1.jpg)
