Computer-implemented invention

A computer implemented invention is an invention whose implementation involves the use of a computer, a network or another programmable apparatus, and one or more features of which are realised by means of a program. The notion reconciles the exclusion of computer programs as such, laid down by Article L. 611-10 of the French Intellectual Property Code and Article 52 of the European Patent Convention, with the protection of technical innovations that rest on software.

The exclusion of programs as such

A computer program, as such, is excluded from patentable inventions and protected instead by copyright, which covers its expression but not the ideas and principles underlying it. The exclusion however concerns the program only to the extent that the patent application relates to that subject matter as such. A computer implemented invention that produces a technical effect going beyond the normal interactions between the program and the machine therefore escapes the exclusion. The provisions can be consulted on Légifrance.

The approach of the European Patent Office

First, the EPO accepts that any claim involving technical means, such as a computer, constitutes an invention within the meaning of the Convention. Second, the real question is deferred to inventive step: only the features that contribute to the technical character of the invention are taken into account, while non-technical features, such as a business method or an abstract algorithm, may appear in the formulation of the problem to be solved. Third, the Enlarged Board of Appeal has clarified that computer assisted simulations obey the same criteria. The examination guidelines are available on the website of the European Patent Office.

Key points

In practice, the computer implemented invention is found in telecommunications, automotive, medical devices, artificial intelligence and industry. Its drafting must highlight the technical problem solved and the technical effect obtained. Its litigation raises specific validity questions and difficulties in proving infringement, which often requires analysing the code or the behaviour of the product. The firm acts in these disputes, as presented on the page patent litigation.

To go further: artificial intelligence and patent law, and the question of AI as an inventor.