Talk:T 641/00

Neutral Point of View

The aThe The article violates the "neutral point of view" requirement, since it does not mention that the COMVIK decision is controversial. Ignoring allegedly non-technical features of the application is not allowed, since it is not allowed to list features that are irrelevant to the problem to be solved. Rbakels (talk) 07:56, 27 May 2023 (UTC)rt

In my understanding, the COMVIK approach is established case law of the Boards of Appeal of the EPO, i.e. it is largely uncontroversial. See for example:

"(...) the established case law on computer-implemented inventions (COMVIK approach) (...)"

As far as I know, there is no sustained controversy in the literature about this approach. --Edcolins (talk) 14:14, 27 May 2023 (UTC)

Practitioners have to follow the (EPO) Board of Appeal approach, and you are probably one of them. But the COMVIK approach is

actually against the law, see e.g. Axel von Hellfeld "Ist nur Technik Stand der Technik? - Zum neuen Neuheitsbegriff

im Europäischen Patentamt und dessen Anwendung auf rechnergestützte

Erfindungen", GRUR Int 2008, p. 1007 (English: "Is just technology state of the art? On the new novelty concpt in the EPO

and its application to computer implemented inventions".) Note that Board of Appeal decisions are no "case law" in the

regular sense, if only for the reason that the "members" of the boards of appeal are no independent judges, but reappointed every five years by the EPO.

It is acknowledged that the "COMVIK approach" while providing desired results for most business method patent applications,

gives counter-intuitive results for other types of inventions. For instance medicines typically are based on discoveries

(excluded by art. 52(2a) EPC) and make no other contribution.

The COMVIK approach pretends to comply with the requirement of an assessment "as a whole", but it actually does not since

it ignores features that are allegedly non-patentable by themselves. But a patent application may only claim features that

are needed to solve the problem at hand, so features are never irrelevant.

The EPO focus on the technical character/contribution is based on an exclusively German tradition - which is the reason that

it was not included in the initial EPC in 1973. EPC 2000 includes the phrase that patents are granted "in all fields of technology",

but that only means that no field of technology may be excluded. It definitely has that meaning in the TRIPS Agreement where it came from.

The Boards of Appeal argue that the four categories of subject-matter excluded by art. 52 EPC share a non-technical

character, but that is controversial, and e.g. not accepted by the British courts.

The latest development is that the COMVIK Approach actually obviates the need for an "invention concept" -

against all patent law traditions and legislation. This observation can actually be considered a "proof by contradiction" of the

incorrectness of the COMVIK Approach. Rbakels (talk) 12:07, 3 October 2023 (UTC)

References