Software cannot be patented in the EU, right?

In the EU, EPC article 52 (2)(c) says:

Many construe this to mean software cannot be patented in the EU. Read the words carefully, though. It doesn't say that. It says a "computer program" cannot be patented. Its does not say you can sidestep a legitimate patent, simply by implementing the concept in software. In fact, this appears to have been tested through the EU legal system (citation needed) and to be a solid legal point that in Europe a patent owner is entitled to control the distribution of computer disks and internet downloads of programs which configure an apparatus to perform a patented process.

To see an example of a computer program patented in the USA try 6,738,733. This is a patent related to the G.723.1 and G.729 speech codecs which appears to be little more than the source code for a competantly implemented version of these codecs. EP1221162 appears to be the same thing patented in the EU, though the validity of such a patent is highly questionable. Things like this are what is getting the European Patent Office a bad name right now. This is probably a good candidate for being shot down in court, IF you can afford the legal bills to attempt such a thing.

There are other patents which are algorithmic speedups for implementing things like G.729, which go beyond simple competant implementation, and show genuine mathematical inventiveness. These are not computer programs, but algorithmic techniques. However, they have no clear "technical effect", as the codec will do exactly the same thing whether these techniques are used to reduce the computation or not. Since these are pure mathematical speedups, it appears they should not be granted in places like the EU. If they are, they could probably be shot down in court by someone well funded (please note the need for large funds).

A third class of patents are the really troublesome ones for free implementation in hardware OR software, in pretty much any country with a patent system. They are most commonly a problem with things like codecs, modems, and other forms of signal processing. These are patents on methods of solving problems, where the solution says nothing whatsoever about software. Most signal processing, perceptual coding, and communications patents are of this type. You might most commonly implement these methods in software, although you could typically implement them in pure hardware, or in hybrid ways. It really doesn't matter. They are solid defendable patents, as long as they pass the tests for obviousness, not being prior art, and so on, and it really doesn't matter just how you implement them.