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EPO – TBA denies patentability of a programming language

17 Oct 2014

Technical Board of Appeal 3.5.06 denies patentability of a programming language.

The Board ruled that the definition and provision of a programming language per se does not contribute to the solution of a technical problem, even if the choice of how it is expressed serves to reduce the mental effort of a programmer.

Renner, Peter (Applicant), Technical Board of Appeal 3.5.06, 18 July 2013, Case No. T 1539/09 Reported by Stefan V. Steinbrener (Bardehle Pagenberg) Having regard to the activity of a programmer, the Enlarged Board of Appeal found in its opinion G 3/08 "Programs for computers" that "it would appear that the fact that fundamentally the formulation of every computer program requires technical considerations in the sense that the programmer has to construct a procedure that a machine can carry out, is not enough to guarantee that the program has a technical character (or that it constitutes "technical means" as that expression is used in e.g. T 258/03, Hitachi).


By analogy one would say that this is only guaranteed if writing the program requires 'further technical considerations'". The question of whether or not the provision of an intuitive programming scheme involved such 'further technical considerations' had to be answered by Board 3.5.06 in a more recent case.

The underlying European application 04014708.4 (in German) had been refused by the Examining Division for lack of inventive step. It related to a graphical programming language and environment that should enable a user to produce program code without requiring major learning effort or special expertise.  

In the Board's opinion, the effect of reducing the mental effort a user has to invest in programming is not technical; this is all the more so as it is to be equally achieved for all programs, no matter what purpose the programs are meant to serve. The activity of programming – in the sense of formulating program code – implies that a programmer must choose those formulations from the repertoire of a programming language that will lead to the desired result when the program is executed. Hence, in the Board's view, the activity of programming as such is basically a mental process, comparable to the verbalization of a thought or the formulation of a mathematical fact in a calculus, and thus lacking any "further technical considerations".

This finding should at least apply if (and in so far as) the activity of programming does not serve to causally produce a technical effect within the framework of a concrete application or environment, which is the case here. For this reason, the Board holds that the definition and provision of a programming language or such means per se does not contribute to the solution of a technical problem.

For the text of the decision (in German), see here.

A more comprehensive summary of the decision (in English) will be published in Bardehle Pagenberg IP Report 2014

Reported by Stefan V. Steinbrener, Bardehle Pagenberg