Dispute over the Meaning of 'Invention' in Article 52(2) EPC - The Patentability of computer-implemented Inventions in Europe

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<p>In 2002, the European Economic and Social Committee (“ESC”) described the doctrinal premise of the European Patent Office’s interpretation of article 52(2) of the European Patent Convention as “the product of legal casuistry”. The purpose of the current article is to consider that description, and ask whether it’s fair, or whether the EPO’s approach to article 52 is better ascribed to problems inherent in the EPC itself.</p> <p>Three issues are addressed to that end. The first is the object of the ESC’s criticism: article 52(2) and its interpretation by the EPO’s Boards of Appeal. The second is the context and substance of the criticism itself: the European Commission’s Proposal for a Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions, and the scathing response it attracted from the ESC. And the third is the question of the criticism’s validity: can the EPO’s approach to article 52(2) be defended against the charge of casuistic reasoning, and if it can, does it follow that the approach is satisfactory?</p>