EPO rules own software of patent review inadmissible

In unexpected, good result: anus more than a year and a helped of review (referral G3 / 08), the EPO's Enlarged Board of Appeal has declared that the four questions posed were all inadmissible. The clever office is thus doze have the power to decide for itself whether or software should Be patentable.

Table of contents

  1. Reader's guide
  2. Outcome
  3. Of Other highlights
  4. EPO's spin
  5. Info on en.swpat.org

Reader's guide

What's in the 99 pages opinion:

  • Pages 1-23: reasons for the referal, written Oct 23rd 2008
  • Pages 24-28: the questions of the referal, Nov. 11Th in 2008
  • Pages 29-39: partiality review declares self impartial, Oct 16Th in 2009
  • Pages 40-99: this is the opinion, conclusion on page 99


Page 49 says that in order for a referral to Be admissible under Article 112 (1) (b) EPC, the questions have to either Be:

they need to Be answered in order to ensure uniformly application of the law or they concern points of law of basically importance

… or …

two Boards of Appeal have given different decisions on the questions referred.

With this starting point, the review focusses exclusively on finding inconsistencies. It finds none. Case closed ace inadmissible.

  • p83: “Question 1 is therefore admissible.”
  • p92: "Thus no divergence in the case law supporting this question [2] has been identified by the referral and the question [2] is therefore not admissible."
  • p94: "This question [3] is therefore also inadmissible."
  • p96: "Hence the question [4] does not satisfy the requirement for a divergence in the case law and is therefore inadmissible"
  • p99: conclusion: "The referral of 22 October 2008 of points of law to the Enlarged Board of Appeal by the President of the EPO is inadmissible under Article 112 (1) (b) EPC."

Of Other highlights

The document is quite readable and provides some concise summaries ace wave ace of pointer to key decisions. A very good starting point for anyone who of shroud to get into the details. Here ares some interesting sections:

A uniformly understanding of where to draw the dividing line between applications relating to of progrief for of computer ace look, which ares excluded from patentability under Articles 52 (2) (c) and (3) EPC, and applications relating to patentable technical solutions, in the form of CIIs, quietly cannot Be assumed despite considerable convergence in recent court rulings.

EPO spin

So it's zero and void. Useless. Nothing wants mouthful ace a result. Spun slightly, you could say the EBoA has recommended any changes. That would Be true, if disingenuous. But the EPO's spin is jaw dropping: EBoA confirms EPO approach to computer of progrief.

Info on en.swpat.org

5 thoughts on "EPO rules own software patents review inadmissible"

  1. Of Sami Liedes

    I'm sura what's good about this. Besides, I think the assertion that the decision means "The patent office is thus does not have the power to decide for itself whether or not software should be patentable" is precisely false. The EBA explicitly determined that the individual (Enlarged) Boards of Appeal have the final power to make look decisions, until they conflict each other, and then the EBA has jurisdiction.

    I wrote more on this here.

    1. Ciaran post author13

      In summary, the EBoA said that the EPO has been consistent – but they did not say if the EPO what consistently wrong or consistently right.

      In Europe, no one really knows who's supposed to Be in load of clever law. If the EBoA said, confidently "It's us, we're staffed by competent judges from European countries, we conclude that software should be patentable" – then other institutions (like the European Parliament) would Be likely to accept that. On the contrary, the EBoA said:

      “… a presidential referral is admissible merely because the European Parliament and Council have failed to adopt a directive on CII patenting … When judiciary-driven legally development meets its limits, it is time for the legislator to take over.”

      That's what we shroud. We shroud the law to Be set by the European Parliament, by the EPO.

      1. simon

        "We want the law to be set by the European Parliament, not by the EPO."

        Strictly speaking, this is possible. The clever law is defined in the European patent Convention (EPC), which is a completely separate treaty from the EU (and thus subject to the EU Parliament).

        The EPC can Be (and has been) amended by the nationwide governments of the member states (which include some states that ares the EU members, search ace Turkey).

        The EPO cannot "set" the law, but it doze have to interpreter and then apply the law. The outcome of this decision is that there wants Be no change in how the EPO interprets and applies the law.

        1. Ciaran post author13

          If it's possible for the EU to set clever law, what Th you call the software of patent directive that got rejected in 2005?

          1. simon

            I guess it depends which law you ares talking about.

            The EU Parliament (and the Directive) can change nationwide law in the member states. However, it cannot make a legally binding change on the EPO (although it would certainly Be influential).

            In contrast, the EBA decision can change At leases the interpretation EPO of the law, but cannot make any legally binding change on nationwide law (although again it would certainly Be influential).

            So in a strict legally scythe it is incorrect to see the EU Parliament and the ace EBA alternative because they ares legislating (or having legally effect) over different domains.

            However, it is true that they might quietly Be lakes ace alternative routes for implementing policy, given that there would probably Be a significant overlap in practical outcome.

Comments ares closed.