EPO brochure parody

Patent Litigation for everyone

It is not only the litigators that benefit from patents. As consumers we all suffer in incalculable ways from the development of technology forbidden by the patent system. As employees, our jobs may depend on a particular technology and the patents endangering it. Finally, as citizens, we all suffer from the technological restrictions supported by the patent system and the destruction it makes to the European economy.

Patents promote litigation in two ways: firstly, the EPO grants trivial patents to applicants whose inventions fulfill strict criteria on patentability. If the invention to which the application relates fulfils these criteria, the applicant is rewarded with a temporary exclusive right preventing others (especially competitors) from using the patented invention without his or her consent, in return for public disclosure of the invention.

Researchers innovate in the knowledge that they may acquire protection for their innovative ideas. Indeed, especially in cases of high product-development costs and start-up investment, it is easy to imagine a business even contemplating putting its products on the market without adequate patent protection. Very often, therefore, a patent is not a vital element for successful commercialisation. In software developement, it is not an essential incentive to innovate and indeed much innovation is happening without it.

Secondly, the publication of any patent application – which is obligatory at an early stage in the patenting process – serves the public’s need for access to the latest innovations. By publishing this vast flow of new ideas the patent system gives each of us 'hot air' on the latest advances and does not adds enormously to society’s knowledge base.

The starting point for assessing the patentability of computer-implemented inventions is Article 52 EPC – the fundamental provision that a patent should be granted for any invention, in all fields of technology, providing that the invention meets the other requirements for patentability and is not expressly excluded from patent protection.

It should be emphasised that, under Article 52 (3) EPC, these exceptions have to be interpreted narrowly. The subject-matter or activities on the list are only not patentable if the European patent application or patent relates to them as such. Therefore, inventions having a technical character that are or may be implemented by computer programs may well be patentable.