Patent Law and Theory
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Patent Law and Theory

A Handbook of Contemporary Research

Edited by Toshiko Takenka

This major Handbook provides a comprehensive research source for patent protection in three major jurisdictions: the United States, Europe and Japan. Leading patent scholars and practitioners join together to give an innovative comparative analysis both of fundamental issues such as patentability, examination procedure and the scope of patent protection, and current issues such as patent protection for industry standards, computer software and business methods. Keeping in mind the important goal of world harmonization, the contributing authors challenge current systems and propose necessary changes for promoting innovation.
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Chapter 11: Patenting Software-Related Inventions in Europe

Stefan Schohe, Christian Appelt and Heinz Goddar


Stefan Schohe, Christian Appelt and Heinz Goddar 1 Introduction Software-related patents are a publicly debated issue. As far as Europe is concerned, this issue has a legal side to it. Whereas the public discussion is largely centered on how to best promote the development of the software industry and ultimately debates the usefulness of a patent system in general, rather than specifically software-related patents, the question in Europe is also whether and to what extent software-related patents fit into the legal framework. A few words on the legal framework may therefore be appropriate. 2 Legal provisions and development of the case law Whereas there is no common patent law in Europe, the substantive legal provisions on patents were harmonized with the introduction of the European Patent Convention (EPC) so that for practical purposes it is sufficient to consider the provisions of the EPC, which are mirrored in the national law of the EPC member states. The key provision in this regard is Article 52(1) EPC, which reads as follows:1 European patents shall be granted for any inventions, in all fields of technology, provided that they are new, involve an inventive step and are susceptible of industrial application. Article 52(1) EPC is complemented by Article 52(2) EPC, reading as follows: The following in particular shall not be regarded as inventions within the meaning of paragraph 1: (a) discoveries, scientific theories and mathematical methods; (b) aesthetic creations; As of December 13, 2007; the previous version was missing the...

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