It’s the non-obvious technical contribution!

I was talking about the first hurdle to software patentability in my previous post (technical character) and how it can be easily overcome.

When it comes to software patents in Europe, the real challenge is the second hurdle: the non-obvious technical contribution.

When a patent claim includes a mix of technical and non-technical features, only the technical features enter into the examination of inventive step. This means that the EP examiner will simply strike any non-technical features from the claim. If only trivial technical features remain, the invention is obvious.

Whether a given feature is technical and thus counts towards non-obviousness is decided case-by-case with good arguments and case law.

So please make sure you choose a European patent attorney who knows his case law and who deeply understands your technology. Only he can carve out persuasive arguments why a certain feature provides a technical effect and therefore can establish non-obviousness.

Happy innovating,
Bastian

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