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Articles & Updates – Details

13 May 2010

EPO Case G 3/08: Patentability of programs for computers

David Al-Khalili

The Enlarged Board of Appeal (EBA) of the European Patent Office (EPO) has released its opinion in the case of G 3/08 concerning the patentability of programs for computers.

The case arose from a referral under Article 112(1)(b) EPC, which allows the President of the EPO, in this case Alison Brimelow, to "refer a point of law to the Enlarged Board of Appeal where two Boards of Appeal have given different decisions on that question".

The EBA has decided that the referral was inadmissible because the referral failed to identify the required differences in case-law. In particular, the EBA held that although the decisions cited in the referral did demonstrate some differences in approach, these could be considered as part of the standard development of law in an area. Newer decisions have all followed the same line of legal development, and hence there are no different (conflicting) decisions within the sense of Article 112(1)(b) EPC.

Although a finding of inadmissibility already implies maintaining the current legal position, the opinion generally goes further and appears to offer explicit support for recent decisions. Accordingly, the opinion represents a significant endorsement of current EPO procedures for handling the patentability of programs for computers. Consequently, it is expected that the opinion will cause little if any change regarding which applications are, or are not, allowed by the EPO. In particular, the EPO will continue to allow patents for inventions which represent a technical problem to a technical solution (irrespective of whether or not they are implemented using a computer program). However, the opinion may be more significant for harmonising national courts across Europe, which have not necessarily always followed the EPO approach.


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