Origin and Interpretive Significance of The Provisions
The computer program exclusion of Rule 39.1 PCT, which originally appears to be for "equipment" reasons, dates from 1969:
" includes mathematical and scientific theories, plant and animal varieties except for microbiology, ornamental designs. It also includes computer programs but only to the extent that the International Searching Authority is not equipped to search prior art concerning such programs."
Rule 39.1 PCT is significant from an interpretive perspective to understand the origin of the much debated Article 52(2) and (3) EPC (see Software patents under the European Patent Convention (EPC) and Article 52 EPC). The computer program exclusion was indeed inserted in the EPC in line with Rule 39.1 PCT, so that Rule 39.1 predates Art. 52(2) and (3) EPC. However, while the PCT condition for excluding computer programs is a question of equipment, the EPC condition is a question of "computer program as such".
According to some, the fact that the PCT does not deal directly with the scope of patentable subject matter, in relation to computer programs, adds "weight to the contention that, having been born out of administrative inconvenience rather than any great principle, restrictions on patentability of programs should be limited to the maximum possible extent."
In the judgment in CFPH LLC's Applications, Peter Prescott referred to Rule 39.1 PCT when discussing the motivation behind the exclusion from patent protection of programs for computers under UK law. He commented that, at the time the EPC was under consideration (during the 1970s), "it was felt that searching the prior art would be a big problem" and that "Rule 39(1) of the Patent Co-operation Treaty recognised that an International Searching Authority might not be suitably equipped".
Read more about this topic: Computer Programs And The Patent Cooperation Treaty
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