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[edit] VICOM/Computer related invention

In European patent law, the Vicom decision (VICOM/Computer related invention, T 208/84) of the Boards of Appeal of the European Patent Office in 1986 was the first ruling given by the Boards as to how far the granting of software patents was prevented by the qualified exclusions set out in the 1973 European Patent Convention.

As set out in the article Software patents under the European Patent Convention, Article 52 of the Convention sets out a number of subject areas, including mathematical methods and (under a separate heading) programs for computers, that are not to be regarded as inventions: for the assessment of patentability they are not patentable subject matter. However, the next paragraph declares that the exclusions shall apply only "to the extent to which a European patent application or European patent relates to such subject-matter or activities as such" (Art 52(3)).

Although Vicom's application related to an improved mathematical algorithm, which could be implemented by a computer program operating on conventional hardware, the Board of Appeal held that if the patent application was narrowed so that the claims were explicitly restricted to a technical process (namely, the digital processing of images, contained in the form of a 2D data array), then the claims could indeed be patentable subject matter. This concept (see also technical effect) has been the focus of the language and terms of discussion about software patentability in Europe ever since.

[edit] Vicom's claim

Vicom's claim related to applying a convolution filter K to a matrix M of data representing a 2D image. Vicom claimed the idea that when K could be well approximated as the convolution of a number of smaller operators,

K \approx K_1 * K_2 \cdots K_r,

one could apply each of the smaller operators in turn separately, rather than the large operator in one go.

M * K \approx M * K_1 * K_2 \cdots K_r,

[edit] Initial rejection

Filed in 1979, Vicom's patent application was considered by the Examination Division of the EPO, and formally refused in 1984.

The Examination division argued that:

  • the claims related to a mathematical method which was not patentable by virtue of Article 52(2)(a) and (3) EPC; and
  • the normal implementation of the claimed methods by a program run on a known computer could not be regarded as an invention in view of Article 52(2)(c) and (3) EPC.

As construed by the Board of Appeal, the Examination division's rejection rested on the views

  • that "the characterising part of the claim would only add a different mathematical concept and would not define new technical subject-matter in terms of technical features"; and
  • that "digital image processing as such was just a calculation carried out on two-dimensional arrays of numbers (representing points of an image) using certain algorithms for smoothing or sharpening the contrast between neighbouring data elements in an array".

The Board found neither of these propositions to be sustainable.

[edit] Decision of the Board of Appeal

On appeal from Vicom, the Board of Appeal overturned the rejection, and sent the application back to the Examination Division for examination to be completed as to novelty and inventive step.

With regard to the mathematical method objection, the Board declared that "if a mathematical method is used in a technical process, that process is carried out on a physical entity (which may be a material object but equally an image stored as an electric signal) by some technical means implementing the method and provides as its result a certain change in that entity", such means including for example "a computer comprising suitable hardware or an appropriately programmed general purpose computer", then the method was producing a direct technical result, and so the claim was addressed to something more definite than just a mathematical method in the abstract.

  • "Even if the idea underlying an invention may be considered to reside in a mathematical method a claim directed to a technical process in which the method is used does not seek protection for the mathematical method as such".
  • "[A] computer set up to operate in accordance with a specified program for controlling or carrying out a technical process cannot be regarded as relating to a computer program as such"
  • "[D]ecisive is what technical contribution the invention as defined in the claim when considered as a whole makes to the known art".

[edit] Outrun

[edit] References