The Relevant Provisions in The Regulations
The Regulations under the PCT do touch on the search and examination of computer programs.
Rule 39.1 PCT states that
"No International Searching Authority shall be required to search an international application if, and to the extent to which, its subject matter is any of the following: (...) (vi) computer programs to the extent that the International Searching Authority is not equipped to search prior art concerning such programs." (emphasis added)
Rule 67.1 PCT states that
"No International Preliminary Examining Authority shall be required to carry out an international preliminary examination on an international application if, and to the extent to which, its subject matter is any of the following: (...) (vi) computer programs to the extent that the International Preliminary Examining Authority is not equipped to carry out an international preliminary examination concerning such programs." (emphasis added)
According to the Board of Appeal 3.5.1 of the EPO, these provisions mean that the ISA and IPEA authorities are not required to carry out searches or preliminary examinations in respect of programs if, for example, they have no examiners trained to do so or are not equipped with appropriate search material. The Board went on to say:
"However, it is not to be inferred from these rules that searches or examinations in the software field are to be ruled out in international authorities. On the contrary, it seems (...) that according to the PCT searches and, if applicable, examinations of this type can and may very well (perhaps even should) be carried out if the competent authority is appropriately equipped."
These provisions deal only with the international searches and international preliminary examinations and not with the national and regional searches or examinations.
Read more about this topic: Computer Programs And The Patent Cooperation Treaty
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