An unexpected, good result: after more than a year and a half of review (referral G3/08), the EPO’s Enlarged Board of Appeal has declared that the four questions posed were all inadmissible. The patent office is thus does not have the power to decide for itself whether or not software should be patentable.
Table of contents
What’s in the 99 page opinion:
- Pages 1-23: reasons for the referal, written Oct 23rd 2008
- Pages 24-28: the questions of the referal, Nov 11th 2008
- Pages 29-39: partiality review declares self impartial, Oct 16th 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 uniform application of the law or they concern points of law of fundamental importance
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 as inadmissible.
- p83: “Question 1 is therefore not admissible.”
- p92: “Thus no divergence in the case law supporting this question  has been identified by the referral and the question  is therefore not admissible.”
- p94: “This question  is therefore also inadmissible.”
- p96: “Hence the question  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.”
The document is quite readable and provides some concise summaries as well as pointers to key decisions. A very good starting point for anyone who wants to get into the details. Here are some interesting sections:
A uniform understanding of where to draw the dividing line between applications relating to programs for computers as such, which are excluded from patentability under Articles 52(2)(c) and (3) EPC, and applications relating to patentable technical solutions, in the form of CIIs, still cannot be assumed despite considerable convergence in recent court rulings.
So it’s null and void. Useless. Nothing will happen as a result. Spun slightly, you could say the EBoA has not recommended any changes. That would be true, if disingenuous. But the EPO’s spin is jaw dropping: EBoA confirms EPO approach to computer programs.