II. Any Hardware Approach
According to Article 52(2) and (3) EPC, “programs for computers as such” are not an invention. To ensure that the door to a patent for a computer-implemented invention is not closed, there is the “any hardware approach”, which is discussed in this chapter. The information is based on the Enlarged Board of Appeal decision G1/19, points 28 to 29.
Avoiding exclusion under Article 52 EPC
- In general, a method involving technical means is an invention within the meaning of Article 52(1) EPC.
- This assessment is made without reference to the prior art (T 258/03, Hitachi, OJ EPO 2004, 575, Headnote I and Reasons, points 4.1 to 4.7; T 388/04, OJ EPO 2007, 16, Headnote I; T 1082/13, Reasons, point 1.1).
- This approach has sometimes been described as the “any technical means” or “any hardware” approach (see reference in G 3/08, OJ EPO 2011, 10, Reasons, point 10.6).
According to the established case law, a claim directed to a computer-implemented invention avoids exclusion under Article 52 EPC merely by referring to the use of a computer, a computer-readable storage medium or other technical means (T 697/17, Reasons, point 3.4).
Claim 1: “A computer-implemented method comprising steps A, B, […]”
Implicitly claimed technical means
A technical feature may be described at a high level of abstraction or functionally, and it may be implicitly evident that a certain claimed method is computer-implemented and hence technical (T 697/17, Reasons, point 3.3 and 3.5).
Example (T 697/17, Reasons, point 3.5):
Claim 1: “Method of updating values in a complex structured type column […] in a relational database system including steps performed by modules of a database system.”
On the other hand, the mere possibility of making use of an unspecified computer for performing a claimed method is not enough to establish the use of technical means for the purposes of Article 52 EPC (T 388/04, Reasons, point 3).
In practice, the feature “computer-implemented” in a claim is sufficient to involve a technical means. Therefore, such a subject matter is considered to be an invention according to Article 52(1) EPC. In other words, the use of the feature “computer-implemented” explicitly or at least implicitly in a computer implemented invention claim results in a computer implemented invention being considered an invention under Art. 52(1) EPC and therefore technical“.