Joff Wild

I have just received this press release from the EPO on the long-awaited Enlarged Board of Appeal review of how the EPO deals with the patentability of computer programs:

Enlarged Board of Appeal confirms EPO approach to computer programs

Today the Enlarged Board of Appeal of the EPO handed down its opinion on referral G 3/08, taking the opportunity to set out and confirm the approach of the EPO regarding the patentability of computer programs under the European Patent Convention (EPC).

The opinion relates to four questions referred to the Enlarged Board in October 2008 by the President of the EPO concerning points of law of fundamental importance for the Office's patenting practice in this field.

The Enlarged Board analysed in detail the development of relevant case law, and found that there was a divergence between two decisions of Technical Boards of Appeal. However, recognising that the "case law in new legal and/or technical fields does not always develop in linear fashion, and that earlier approaches may be abandoned or modified", the Enlarged Board found that this constituted a legitimate development rather than a conflict of case law.

In the absence of conflicting Board of Appeal decisions, the Enlarged Board concluded that the legal requirements for a referral were not met. Nevertheless, the Board affirmed the right of the President of the EPO to "make full use of the discretion granted by Article 112(1)(b) EPC" in making a referral, and provided further guidance on how these requirements for such a referral should be interpreted.

The full decision is here. I have received some initial comments on what it means from a UK perspective from Marks & Clerk in London:

The decision announced today by the Enlarged Board of Appeal re: software patentability is a very important move. While the UK has started, since Symbian, to slowly move towards a more European position, we have seen considerable divergence in the treatment of software in the UK for some time.

The decision today by the Enlarged Board - confirming the EPO approach - provides industry with certainty as to the state of the law, and should hopefully encourage the historically hostile UK-IPO to ensure consistency across Europe, and other national patent offices.