The term ‘invention’ can be defined as “a creation (an intellectual effort that leads to a result) in the technical domain.” Article 27(1) TRIPS states that patent protection is available for any inventions in all fields of technology, provided that the other three conditions for patentability are met.

From a patent law perspective, an invention should be completely distinguished from ‘discoveries’: a discovery means that the discoverer has noticed something that had never before been seen; an invention, by contrast, means that something is created that previously never existed.

Moreover, regulators often expressly identify which findings cannot be regarded as such from a technical legal perspective. Article 52(2) of the European Patent Convention lists, in addition to discoveries, also (a) scientific theories and mathematical methods, (b) aesthetic creations, (c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers, and (d) presentations of information.

The patentability of these items or activities is ruled out under article 52(3) of the European Patent Convention, in so far as the European patent application or the European patent relates to any of those items or activities as such. These considerations are relevant inter aliawith regard to the patentability of computer programs.

Although the European Patent Convention excludes ‘computer programs’ “as such” from patentability, the European patent system has been opened up to ‘computer-implemented inventions.’ In 2002, the European Patent Office granted about 16,000 patents that – in one way or another – referred or related to a computer program.

In 2002, the European Commission presented a proposal for a Directive on the protection by patents of computer-implemented inventions, which aims to harmonise the way in which national patent laws deal with inventions using software. Today, the debate to allow software patents in Europe is still ongoing.

‘Inventions’ can be regarded as covering new products, new processes, new applications and new combinations of already known technical means.