Computer programs and the Patent Cooperation Treaty

There are two provisions in the Regulations annexed to the Patent Cooperation Treaty (PCT) that relate to the search and examination of patent applications concerning computer programs. These two provisions are present in the PCT, which does not provide for the grant of patents but provides a unified procedure for filing, searching and examining patent applications, called international applications. The question of patentability is touched when conducting the search and the examination, which is an examination of whether the invention appears to be patentable.

These two provisions are Rule 39.1 PCT and Rule 67.1 PCT, and, in conjunction respectively with Article 17(2)(a)(i) PCT and Article 34(4)(a)(i) PCT, may have a concrete impact on the procedure under the PCT, in the search and examination performed under the PCT. Indeed, depending on the patent office which is in charge of the search or examination under the PCT, the application filed for an invention relating to a computer program may or may not be searched or examined. In addition, the ISA and IPEA (see background section) that do not search such applications to a certain extent have diverging practices with respect to determinations of exclusions as to computer programs.

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