Software patents under the Patent Cooperation Treaty

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There is almost nothing in the Patent Cooperation Treaty that relates to software patents. The only relevant provision can be found in the Implementing Regulations under the Patent Cooperation Treaty, in which Rule 67.1 PCT states that

"No International Preliminary Examining Authority shall be required to carry out an international preliminary examination on an international application if, and to the extent to which, its subject matter is any of the following:

(...)

vi) computer programs to the extent that the International Preliminary Examining Authority is not equipped to carry out an international preliminary examination concerning such programs."

However, this Rule has no consequence whatsoever as regards the patentability in national or regional patent offices designated in a PCT applications, as they have to draw their own conclusions based on their own national or regional patent law (the four regional patent offices are the European Patent Office or EPO, the Eurasian Patent Office or EAPO, the African Intellectual Property Organization or OAPI and the African Regional Intellectual Property Organization or ARIPO). Indeed Article 27(5) PCT provides that, as far as substantive conditions of patentability are concerned, national and regional patent laws prevail:

"Nothing in this Treaty and the Regulations is intended to be construed as prescribing anything that would limit the freedom of each Contracting State to prescribe such substantive conditions of patentability as it desires. (...)"