Patents on computer programs and on electronic game systems / patents on methods of carrying on economic activities?

Abstract

The work analyses the patentability of inventions involving computer programs in the field of electronic gaming and of methods for doing business and, where such patentability is admitted in particular cases, seeks to clarify the scope of protection of these patents; subsidiarily, it analyses the protection of computer programs and gaming systems by copyright. The argument sets the concept of invention as a technical solution producing a technical effect against the exclusions of Article 52(2) of the EPC, and draws on the practice of the European Patent Office, United States case law, the examination guidelines of the Brazilian INPI and Portuguese law. It addresses the distinction between computer programs and methods for doing business "as such" and their mere technical implementation, the assessment of inventive step, the reach of the ius prohibendi and the function of independent claims. It holds that implementation by means of a computer program can hardly be denied technical character, but that recognising an invention does not suffice for the grant of a patent, which depends on the distance from the state of the art, and that copyright protects the form of the sequence of instructions, not its inherent utilitarian function.