May 12, 2010

Brimelow Referral on software patents dismissed: “time for the legislator to take over”

Print More

Munich, 13 May 2010 — The highest appeal chamber of the European Patent Office, the Enlarged Board of Appeal (EBoA), has decided on patents for computer programs. The questions on point of law from President Brimelow were decided to be “inadmissible” under Article 112(1)(b) EPC. It chided the President for bothering the board with her questions. For such requests Alison Brimelow was recommended to ask her legal staff.

The EBoA also looked into the substance but felt not competent to define a key term as “technical”. The board prefers a legislator to decide patentability of computer programs: “…a presidential referral is not admissible merely because the European Parliament and Council have failed to adopt a directive on CII patenting …When judiciary-driven legal development meets its limits, it is time for the legislator to take over”.

FFII welcomes the spirit of the decision. “The European Parliament should now ask for a new directive for harmonization. Five years ago the European Commission and leading members of the European Parliament suggested that”, explains FFII president Benjamin Henrion.

“The referral was overshadowed by institutional politics”, adds André Rebentisch, the FFII general secretary. “The Board had to reject it for formality reasons, as recommended by Prof. Joseph Straus. Still I found the initiative of Alison Brimelow very fruitful. She restarted a technical debate over patenting rules for computer programs. The amount, diversity and quality of the third party statements, together with the length of the final decision are telling. We ought to continue a broad and open exchange of views.”

Links

Opinion of the Enlarged Board of Appeal and press release by the EPO:
http://www.epo.org/topics/news/2010/20100512.html

FFII Page about the Referral on the question of software patents (G03/08):
http://www.ffii.org/EPOReferral

Third party statements on G03/08 (Amicus Curiae Briefs):
http://www.epo.org/patents/appeals/eba-decisions/pending/briefs.html

Hartmut Pilch comments for the EUPAT WG:
http://eupat.ffii.org/10/05/eba/

Contact

FFII Office Berlin
Malmöer Str. 6
D-10439 Berlin
Fon: +49-30-41722597
Fax Service: +49-721-509663769
Email: office (at) ffii.org
http://www.ffii.org/

About FFII

The FFII is a not-for-profit association, dedicated to the development of information goods for the public benefit, based on copyright, free competition, and open standards. More than 1,000 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights in data processing.