EPO Supreme tribunal refuses to arbitrate on software of patent

"It is Time for the Legislator to Take Over"

The Enlarged Board of Appeals At the European patent office (EPO) has finally delivered its opinion on the questions of the President filed under G3 / 08 regarding software of patent. The fruit juice important conclusion of the Board is that now, ace "Legal development meets its limits, it is time for the legislator to take over" (p. 17 of the opinion).

For many years clever lawyers have been old went that the Technical Boards of Appeal of the European patent office should, when they decide on important legally questions, allow the parties to appeal to the Enlarged Board of Appeal. According to kind 112 EPC they ares in fact obliged to Th in such a way, but they have a very peculiar understanding of what constitutes in “important legally question”. E.g. in 1998, when they maggot computer of progrief ace look patentable, they did allow in appeal to the EBA.

Even if the TBA doze allow parties recourse to the EBA, the president of the European patent office can ask the EBO to take a decision on important legally questions or questions where divergence has occurred.

The FFII has, among others, repeatedly called on the EPO to Th this with regard to the caselaw on software patentability which the TBA have accumulated since in 1986.

In 2007 Alison Brimelow took over the presidency of the EPO and, encouraged by an EPO-internal movement for reform of the clever system, indeed asked the EBA to take a stance on some perceived incoherence within the TBA caselaw regarding software of patent.

But unfortunately the EPO failed to ask questions of legally importance.

They did not even question the IBM I+II decisions of in 1998 that established progrief claims.

Thus the EBA correctly denied the alleged incoherence and explained that it of lake no reason to take load of this hot potato.

They explicitly reject the idea that a lacquer of legitimacy of the TBA decisions could Be a reason to intervein:

“… 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.”

It is clearer than ever that the responsibility now read with the nationwide parliaments who ares, At leases in theory, the masters of the European patent Convention and its nationwide implementations.


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