Computer Implemented Inventions – A Further Fallacy at the EPO
In the 2013 decision T 1670/07-Shopping with mobile device/NOKIA, Technical Board of Appeal 3.5.01 described a gallery of fallacies: frequently advanced arguments that appear reasonable but are fundamentally flawed. In decisions T 1755/10-Software structure/TRILOGY of 6 November 2014 and T 1834/10-Image selection/EBAY of 25 February 2015 the Board has added another, which they refer to as the software implementation fallacy. This argument seeks to suggest that modified software causes a modified behaviour of the computer and should for that very reason (eo ipso) be considered as a technical implementation. The Board counters that if the modified software implements a non-technical idea, its modification does not get over the hurdle of providing a further technical effect beyond that of the mere running of the program.
These latest cases, like those before them, illustrate the great difficulty an applicant faces if it is asserted that the overall aim of an invention is non-technical. If a truly new and inventive data or program structure has general applicability it ought to be patentable, but if initially claimed in the context of a specific, non-technical implementation it is very hard to overcome.
These cases also illustrate the difficulty of arguing that an implementation is inventive if details of the implementation are sparse. An appropriate level of detail needs to be included at the drafting stage and boilerplate clauses indicating that the invention can be carried out by any suitably programmed computing device tend to hinder rather than help.