I know that no software can be patented in Europe. But what if I use software in an electronic board, and introduce that hardware? Can that be patented?

2 Answers 2


Under the EPC, computer programs are excluded from patentability (Art. 52(2)), but only as such (Art. 52(3)). Consequently, workarounds for claim wording have been developed (see this EPO powerpoint presentation):

  • "computer program product",
  • "storage medium comprising instructions...",
  • "data processing apparatus comprising means for carrying out steps..."

The last construct seems the closest to your idea.

Note that these wordings avoid an straight exclusion from patentability, but to be "patented", the subject-matter of a claim still has to be novel and inventive (Art. 52(1)).

For further justification regarding the wording "computer program product", see the landmark decision of the Board of Appeal.

  • Embedded SW may be publicly protected in two ways: copyright protection or patent that describes functionality. For this purpose you need to describe the HW that is used and than the "method in which it is used".
    – Moti
    Aug 13, 2015 at 2:29

It's not quite correct to say that "no software can be patented in Europe". If an invention solves a technical problem then it may be patent eligible regardless of whether it is implemented in software or hardware. So in an embedded context you are actually quite likely to be solving technical problems.

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