Computer implemented invention

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The term computer-implemented invention (CIE) was coined in June 2000 in a joint study by the patent offices of Europe, Japan and the USA and describes the subject of claims for software patents . Accordingly, a computer-implemented invention is characterized by objects of the following type:

"... computers, computer networks or other conventional programmable digital devices, the novel properties of the claimed invention apparently being effected by a new program or programs."

The term "computer-implemented invention" is mainly used by proponents of what their opponents call "software patents". In CIE, the latter essentially see computer programs in the context of patent claims , i.e. precisely those items that are not inventions within the meaning of the law ( Article 52 EPC , Section 1 Patent Act). You therefore reject the term “CIE” as misleading.


Since a groundbreaking decision by its Technical Board of Appeal in 1998 ( IBM Program Product T 1173/97 ), the European Patent Office (EPO) has granted program claims for which the direct subject matter of the patent request is a "computer program characterized in that ...". According to the EPO doctrine, these claims are still not directed at the "programs for data processing systems" as such, which are excluded from Article 52 EPC. In the aforementioned decision, the EPO states that a computer program claim - as well as a process or product claim - is admissible if its subject matter has a “further technical effect” that is based on a “normal physical interaction between the program and Computer ”. At CIE, this “further technical effect” typically consists of saving computing time or storage space, so it is in the field of data processing.

However, the EPO also designates such subject-matter as CIE for which it was unable to determine any “further technical effect” or “technical contribution”. The term “ invention ” has lost its previous delimiting meaning in the EPO's new system, especially since the decision “Controlling Pension Benefits System” in 2000. Every subject matter provided with computer features is therefore from the outset an invention within the meaning of Article 52 EPC. Instead of a separate examination of the invention in accordance with Article 52, the examination for "inventive step" (Article 56 EPC) asks whether the CIE has a "further technical effect".

Proposal for a directive

The new EPO doctrine became the content of a proposal by the European Commission for a directive “on the patentability of computer-implemented inventions” in 2002, which was rejected by the European Parliament in September 2003 and again in June 2005. The counter-proposals of the parliamentary majority called for the restoration of the previous interpretation of the law. In the 21 compromise proposals of the rapporteur Michel Rocard of June 2005, which found the support of a bipartisan parliamentary majority, the term “CIE” is rejected and partly replaced by “computer-aided invention” (CGE). CGEs are therefore "inventions in the field of applied natural sciences" and not data processing as such.

In May 2004 the Council of the European Union adopted a so-called “compromise paper” as a “common position”, which, however, did not include any of the substantial amendments proposed by Parliament from the first reading and forced the courts to recognize the software patents granted by the European Patent Office and to issue them to Parliament There was a vote. In terms of patentability, this proposal even went beyond the Commission's original draft and it could only be formally adopted as a “common position” in the context of the co-decision procedure in a controversial procedure . A request by the parliament to renegotiate the entire directive was rejected by the commission, and the binding decision of the Danish parliament was disregarded by its council representative, who had voted for a renewed discussion in the council. The German government also acted contrary to the intergroup decision of the Bundestag and waved through the "common position" with only minor changes. Since Austria, Italy and Belgium abstained from the vote, eight states formulated their concerns as an additional declaration to the decision, and Parliament's amendments were not taken into account, it is therefore impossible to speak of a "common position" in any way.

256 amendments were tabled for the second reading in Parliament, which were examined and summarized in the Legal Affairs Committee ( JURI ). On June 20, 2005, this committee voted on the drafts, which were then debated and voted on in Parliament on July 5, 6 and 7. During this vote in the Legal Affairs Committee, the members largely followed the line of the EU Council. The legal policy spokesman for the Christian Democratic People's Party, Klaus-Heiner Lehne , was able to enforce his patent-friendly course in his parliamentary group.

Parliament had the choice of adopting the "common position", rejecting it entirely, or calling for further changes. However, according to the procedural rules of the co-decision procedure, the hurdles for a rejection or amendment were set high, as the parliament had to decide by an absolute majority . If there had been a rejection or amendments, the draft directive would have had to be referred back to the Council, which would then have had to seek a compromise with Parliament in the so-called third reading through a conciliation procedure. However, the behavior of Council President Jean-Claude Juncker and the former Federal Minister of Justice, Zypries , indicated that a solution that would prevent such a third reading should be found through a so-called trialogue procedure before Parliament's vote. In the German EU parliamentarians, the Greens and the PDS parliamentary group were unanimously against the council's draft. In the largest parliamentary group of the CDU / CSU and the FDP, the majority of the members of parliament were initially in favor, while in the SPD no uniform line was discernible.

However, Parliament was unable to prevail against the Council and the Commission within the framework of the EU legislative process. On July 6, 2005, a large (95 percent) majority voted 648 out of 680 MPs against the directive on the patentability of “computer-implemented inventions”.

The EPO continues to adhere to and actively defend its Technical Board of Appeal doctrine. It has been running a web campaign for CIE since around June 2005 and has published a brochure on it.

Quotes after the decision

“While it is true that no directive is better than a bad one, there is no reason to celebrate. The U-turn by the conservatives and liberals shows that the persistent criticism of the planned directive has had an effect. Conservatives and liberals were forced to respond. However, contrary to the European Patent Convention, national patent offices and the European patent office have already granted thousands of software patents, including numerous so-called trivial patents. Even if these cannot be enforced for the time being - this time bomb has not been defused, but continues to tick! An evaluation of the granting practice of the patent offices now urgently needs to be initiated in order to prevent the granting of new and the enforcement of old software patents uniformly in Europe. "

- Katja Husen , former member of the federal executive board and Reinhard Bütikofer, member of Bündnis 90 / Die Grünen

“The rejection of the directive is a big day for parliamentarianism. Lobbyists, Microsoft & Co and patent officials have failed miserably in their attempt at an uncompromising march through. The non-partisan joint initiative of the German Bundestag with the advice of insecure EU parliamentarians up to the last few days also means a completely new form of parliamentary cooperation across national borders. "

- Jörg Tauss , spokesman for the SPD parliamentary group at the time

"All medium-sized companies that trade in electronics in machines, cars and mobile phones within the EU can take a load off their hearts today."

- Matthias Wissmann ( CDU ), Chairman of the European Committee of the German Bundestag

“Before an unmanageable flood of amendments watered down the directive, it is better to have no directive than a bad one. Instead of clarity, we would have created confusion and possibly achieved the opposite of what we originally wanted: legal security for the citizens. "

- Alexander Alvaro ( FDP ), domestic policy spokesman for the Liberals in the European Parliament

“This is a wise decision. This prevents legislation that might have restricted patentability in Europe to the detriment of industry. Parliament decided today in favor of the status quo, which has so far served the interests of our 10,000 member companies well. "

- Mark MacGann , spokesman for the umbrella organization of the European high-tech industry EICTA

“The Strasbourg decision is a good day for Europe. The citizens of Europe have achieved an important victory against software monopolies. Despite massive lobbying by the software giants, this time the particular interests of big industry could not prevail. However, rejecting the directive is only the second best solution. It would have been better if the parliament had decided to change the guideline so that software patents are effectively excluded. The current illegal patenting practice of the European Patent Office must be stopped - either by the national courts or by a new directive. "

- Oliver Moldenhauer , spokesman for Attac

Web links

Individual evidence

  1. Report on Comparative Study Carried Out Under Trilateral Project B3b ( Memento from August 16, 2000 in the Internet Archive ), Appendix 6 ( Memento from August 18, 2000 in the Internet Archive ) (PDF; 12 kB)
  2. DECISION of 1 July 1998 T 1173/97 ( English , PDF) Boards of Appeal of the European Patent Office. Archived from the original on August 30, 2008. Retrieved February 12, 2019.
  3. Consolidated version of the amended directive on the patentability of computer-aided inventions . Archived from the original on March 21, 2007. Retrieved February 12, 2019.
  4. Archive link ( Memento of the original from June 21, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.  @1@ 2Template: Webachiv / IABot /